Controle de convencionalidade e direito anticorrupção: uma análise acerca da (in)convencionalidade dos novos prazos prescricionais trazidos pela Lei nº 14.230/2021

Abstract

The Law nº 14.230/2021 has implemented modifications to the Law nº 8.429/1992, that addresses the sanctions applicable to acts of administrative misconduct. Among them,it is important to emphasize the new starting point of the statute of limitations, provided in the article 23, caput, and the intercurrent statute of limitations, present in the §4º and §5º of the same article. Therefore, the question arises: are the new statutes of limitations in non-compliance with the inter-american norms for corruption control? In order to answer this question, an analysis of the conventionality control was carried out, observing its evolution in the Inter-American Court of Human Rights and its application in domestic law. Also, the anticorrupção international norms was investigated, along with the relation of the anticorruption law and human rights. Ultimately, the compatibility of the new statute of limitations, brought by the Law nº 14.230/21, and the Inter-American System for Protection of Human Rights was explored. The methodology adopted was bibliographical, encompassing the conventionality control, the internal legislations that address administrative misconduct, the main documents of the Inter-American and Onusian Systems for Protection of Human Rights, the United Nations and Inter-American Convention Against Corruption. Furthermore, a precedent research of the superior courts of the country was carried out, using as parameters the conventionality control and statute of limitations as a general rule, in the scope of the last two decades. The same parameters was also used in the precedent research of the Inter-American Court of Human Rights, alongside with the terms “corruption” and “impunity”. Specifically about the Law nº 14.230/21, the precedent research was made with the terms “conventionality control”, “administrative misconduct” and “statute of limitations” on the website of the STF, STJ and the “jusbrasil” platform. It is important to highlight that the new legislation came into force recently and it’s being questioned in the Judiciary, like the ADIs 7236 e 723,7 but the discussions are still in the embryonic state, specially around it’s relation with the International Human Rights Law. From the obtained, it was possible to conclude that the changes brought by the Law nº 14.230/2021 in the article 23, caput, §4º e §5º of the Law nº 8.429/1992 violate the article 29 of the Mérida Convention and articles III.1 and III.2 of the Inter-American Convention Against Corruption, for reducing, in reality, the statute of limitations for the processing of the types fixed in the said Conventions, and for weakening the necessary mechanisms to make the norms that fight corruption effective.