News - 16/12/20
Brazilian Supreme Court decides that the automatic removal of public servants due to indictment for the crime of money laundering is unconstitutional
The Brazilian Supreme Court declared the unconstitutionality of article 17-D of Law 9,613/1998 – a law that regulates the crimes of money laundering and concealment of assets -, in a judgment carried out under the Ação Declaratória de Inconstitucionalidade n. 4.911. The article, introduced by law n. 12.683/2012, determined that, in case of indictment for the crime of money laundering, the public servant would be automatically removed from his duties, until a competent judge, in a reasoned decision, authorized his return.
The lawsuit was filed by the National Association of Public Attorneys (ANPR), that sustained that the article should be declared unconstitutional for violating a series of fundamental rights, such as the guarantees of the presumption of innocence, legal certainty, reasonableness and proportionality, due process, adversarial principle and wide-ranging defense and, finally, the unfeasibility of jurisdiction. Furthermore, it claimed that the provision would usurp the functional powers of the Public Prosecution, which has the task of requesting the application of a precautionary measure, and of the Judiciary, which is responsible for determining its application.
The rapporteur of the action at the Supreme Court, Minister Edson Fachin, stated that the article 17-D of Law 9.613 / 1998 does not violate the Constitution. In his vote, he mentioned that the attribution of precautionary power to the police authority is consistent with the functions attributed to the police by the constitutional text, which is in line with the jurisprudence of the Supreme Court on the need for instruments for the exercise of the constitutional duty of police investigation.
To support this argument, he mentioned the power to enact precautionary measures of the Federal Court of Accounts – an administrative court – provided for in Law 8.666/93 and the possibility of enacting emergency measures by the police chief in the context of domestic violence predict for the Law 11.340/2006. Still, he mentioned the provision of Law 8.112/90, which allows the public servant to be removed from office in the context of a disciplinary administrative process, to the extent that it can be verified by the authority that initiated the procedure. This understanding was followed only by Minister Carmen Lúcia.
Minister Marco Aurélio, in turn, shared his divergent opinion to support the need for an interpretation in accordance with the Constitution to the article. He affirmed in his vote that the removal of the employee is an exceptional measure, of a precautionary nature, that implies a limitation of an individual right, so it could only be decreed by judicial decision. Therefore, he affirmed that the provision of the article 17-D transfers to the police chief a typically jurisdictional action, giving rise to an early and therefore unconstitutional punishment.
In conclusion, he partially upheld the ANPR’s request to give an interpretation in accordance with the Constitution to article 17-D, in the sense that the removal of a public servant, before indictment by a police delegate, can occur as long as it is done through judicial review.
However, the vote of Minister Alexandre de Moraes is the one that prevailed. He maintained that the Constitution imposes an accusatory criminal-procedural system, with clear attribution delimitations to each public body in the criminal prosecution. In this context, the Public Prosecution is the holder of the criminal lawsuit, which is why it is up to this body to decide on the need and convenience of applying precautionary measures.
Furthermore, he refuted Min. Edson Fachin’s argument, stating that the hypotheses regarding the Federal Court of Accounts and the removal of the public servant in disciplinary proceedings are different from the hypothesis of the law in question. In this sense, it was reasoned that these are hypotheses that require a reasoned administrative decision, which can be subject to judicial control. The provision of the article 17-D, in turn, restricts fundamental rights without a reasoned decision, which violates, above all, the constitutional principle of the reasoning of judicial and administrative decisions, as well as the principles of legality and proportionality.
Finally, the ANPR’s request to declare Article 17-D of Law 9,613/1998 unconstitutional, as amended by Law 12,613/2012, was upheld. Ministers Luiz Fux, Gilmar Mendes, Ricardo Lewandowski, Dias Toffoli, Rosa Weber, Nunes Marques and Luís Roberto Barroso followed this understanding. The trial took place on November 23, 2020, with the final judgment on December 12, 2020.