The application of the principle of congruence in administrative improbity actions

on the (im)possibility of examining the subsidiary request filed by the Federal Prosecution Service

Abstract

The inclusion of paragraphs 10-D and 10-F, item I, in Article 17 of Law No. 8,429 of June 2, 1992, by Law No. 14,230 of March 29, 2021, has sparked debate regarding the application of the principle of congruence in administrative improbity actions, particularly the defensive argument that, in cases initiated before the aforementioned amendment and still pending judgment, the Federal Prosecution Service (MPF) would be limited to attributing only one conduct to each fact, thereby being precluded from making a subsidiary request. Thus, the general objective of this article is to verify how the aforementioned principle is applied in improbity actions, considering the subsidiary request included by the Federal Prosecution Service. To this end, a qualitative analysis was conducted through bibliographic research, study of available doctrines in books and academic-scientific texts, documentary research, examination of current legislation, and case law review. From this, it was possible to conclude that, provided it does not require changes to the factual description set forth in the initial petition, there is no reason, from the defense’s perspective, to uphold the argument against examining the subsidiary request, as it constitutes a legitimate procedural strategy aimed at providing the broadest possible protection to public funds.