A intersecção entre o Direito Penal e o Direito Administrativo Sancionador: a multiplicidade sancionatória estatal em atos de corrupção no ordenamento jurídico brasileiro

Abstract

This research aims to analyze the discussion regarding the normative overlap and the consequent sanctioning multiplicity arising from acts of corruption in Brazil, notably with regard to the intersection between Criminal Law and Sanctioning Administrative Law. In practice, the initial problem is based on the fact that with the commission of an unlawful act considered corrupt both by the Penal Code and by the Law of Administrative Improbity, can be sanctioned twice, which is capable of generating evident disproportionality based on the gravity of conduct. The initial hypothesis questioned whether there is an occurrence of bis in idem between the filing of a criminal action and a public civil action for an act of administrative impropriety due to the practice of the same act. Despite the dogma of independence between the instances appearing as an obstacle to its recognition, the investigation showed that both the doctrine, the jurisprudence and the legislation moved towards recognizing the interdependence between the punitive spheres and enabling joint action between the instances. Moreover, the theory of the state´s uniqueness punitive power is configured as an important corroborating element, which conceives the relationship between the spheres of Law, understanding that the criminal harvest and the administrative sanction figure as manifestations of the same singularity. Otherwise, even if the provisions of art. 37, § 4, from the 1988 Federal Constitution, provides possible punishments for acts of administrative impropriety without prejudice to the appropriate criminal action, it was seen that it does not expressly determine that the use of criminal and administrative instances justified due to the practice of a single act, since there are conducts that must be classified as criminal offenses and others as administrative offenses. In the light of the written postulates, there is a need to recognize the unity of the state punitive power and to establish a dialogue between the punitive instances that aim to curb acts of corruption between criminal action and action of administrative improbity, under penalty of incurring in bis in idem, especially when considering the repressive character among the satisfactory ones, seeking to privilege the criminal area, due to its observance of more rigorous criteria about fundamental guarantees. From the international experience, it was seen that there is understanding in the sense that the material content of the infraction must be analyzed for the purpose of verifying the occurrence of the double punishment. In the end, there were two proposed proposals: the first is in the sense that there is a choice by the accusatory body to sanction the individual, due to its material similarity and the second in the sense that there is a predilection for the criminal area to the detriment of the administrative sanction, observing the result of the criminal harvest, which has the greatest fundamental guarantees. For this proposition, the hypothetical-deductive approach was used to verify the confirmation of the hypothesis and its variables, with the technique of direct documents, legislative analysis and judicial and administrative decisions, as well as indirect, based on national and international doctrinal research.