The First Chamber of the STJ (Higher Court of Justice) unanimously decided to acquit former judge Maurizio Marchetti, of the Atibaia Labor Court (SP), convicted on the basis of the old formulation of the Administrative Improbity Law.
The judge was removed from office in 2006.
On November 18, the commission deemed a public civil action “totally unfounded”, considering that “the behavior attributed to the defendant was characterized on the basis of a revoked rule” (article 11 of the law).
“Although the intentional illegality of the behavior has been recognized by the ordinary courts, the act no longer constitutes an administrative improbability according to the new legal wording,” voted the rapporteur, Minister Sérgio Kukina.
Marchetti says that “as a judge, he always believed that in a calm and impartial court, even if it took time, justice would be done.” He was represented by lawyers Mauro Roberto Gomes de Mattos and Rafael de Moura Campos.
Ministers Gurgel de Faria, Paulo Sérgio Domingues and Benedito Gonçalves accompanied the rapporteur. Indicted, Minister Regina Helena Costa.
In 2018, Marchetti requested voluntary retirement after 41 years of regularly granted social security contributions. “What I was asking is that my career not be tarnished,” the former judge said.
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The former judge was also responsible for ordering the coercive conduct of a witness; issuance of subpoena warrants without respecting regular legal procedures and issuance of an arrest warrant considered abusive against an employee of the Brazilian Bar Association.
The appeals of the union and the federal public prosecutor were prejudiced in the judgment of the STJ.
The union argued that law no. 14.230/2021 does not provide for its retroactive application, being inapplicable to wrongful acts committed under the auspices of previous legislation. The new article would represent insufficient protection of public property. In 2005, the Leaf
published that Marchetti was the subject of an extraordinary correction, an inspection by the Department of Internal Affairs of the TRT-15, requested by the Bragança Paulista subsection of the OAB-SP.
For the dismissed judge, the correction was a retaliatory measure on the part of the court inspector, Luis Carlos Sotero Cândido da Silva, whom he accused of having employed the woman in his office. The nomination was rescinded by the TCU.
Sotero denied retaliating. He said that he had granted the OAB’s request and had not requested the dismissal of the judge, but only a disciplinary sanction, and that the decision had been taken by the TRT plenary. Sotero died in July 2020.
In the appeal, Marchetti argued that the conviction was based exclusively on the repealed text of the law and that “the basis for the conviction no longer exists.”
He added that while there remained speculation of improbability, “current sanctions no longer authorize loss of office or suspension of political rights.”
As a third point, he mentioned the existence of two criminal actions filed due to the atypicality of the same facts, at TRF-3, under accusations of embezzlement.
Kukina noted that “the new wording of the legal provision now provides for a comprehensive list of acts of administrative improbity, no longer allowing liability for generic violations of the principles of public administration.”
“It is wrong to set or confirm a sentence based on a rule that no longer exists.”
“Although the accused engaged in abusive behaviors in his role as a judge, they do not fall within the exhaustive list of Article 11.”
“There no longer exists a normative correspondence to justify illegal behavior under the terms of the exhaustive list of the current article 11 of the Administrative Improbity Law,” decided the STJ.
REsp 1 567 829/SP
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