Penaliformidade do ilícito de improbidade administrativa e a jurisprudência do Tribunal Regional Federal da 5ª Região e dos Tribunais Superiores: decorrência da unicidade do Jus Puniendi

Abstract

The work analyzes the Law of Administrative Improbity (Law 8.429 / 92) and the controversies and consequences surrounding its framework as an instrument of jus puniendi, since the unitary theory of jus puniendi advocates the application of elements directed to ensure the implementation of fundamental rights. For this, in order to establish the scope of study and determine the protective area of the Administrative Improbity Law and, consequently, the legal duty of the public agent, it was initially sought for the densification of the principle of administrative probity, through the use of positive discourse (and not aimed at the optics of improbity) of the duty placed on the occupant of any public function. It is indispensable, in the proposed context, the understanding of the punishable nature of the action of administrative improbity and what elements surround this characteristic, so that it is possible to understand which guaranteeing elements, coming from criminal law and criminal procedural law, are inserted in the thematic of the improbity, as accordingly attributed by the case law of the Regional Federal Court of the 5th Region and higher courts. The work then analyses the vital role played by the principles of typicity and guilt in shaping the act of administrative improbity. It ends, finally, dealing with the sanctions applicable to the probity violating administrative agent, reflecting on the consequences of the recent judgment of Extraordinary Appeal 852475 and the implications of the unitary theory of jus puniendi on the violation of the ne bis idem principle.