Produção e adoção de precedentes administrativos nos processos disciplinares: uma análise empírica da perda do cargo motivada por desídia no âmbito do Poder Executivo Federal.

Abstract

The present work analyzed the production and adoption of administrative precedents related to disciplinary proceedings that led to negligence in the position of the GCU and the GAU, after the edition of article 30 of the NLIRBL. The following research problem was formulated: has the Federal Public Administration produced/adopted administrative precedents when the DAP’s were judged related to negligence, guaranteeing impersonality and stability in their decisions and, consequently, the reduction of judicialization? The negligence was chosen due to the indeterminacy of the term, which generates discrepant decisions for similar cases. The provisional hypothesis was that the GCU, the central body of correctional activity, and the GAU, dedicated to the production of opinions and guidance from the Administration, produce/adopt administrative precedents that guarantee predictability and equality in the judgment of DAP’s. Using the hypothetical-deductive method and having as main sources the national and foreign doctrine, court decisions, normative, opinionated and binding acts, and a sample of cases from the aforementioned bodies, the tests were carried out, obtaining the following results: you don't understand the reason for so much euphoria, on the part of the doctrine, in relation to article 30 of the NLIRBL, considered a revolution in Public Law, by studies that stick solely to legal dogmatics. This is an old “novelty”, as the Brazilian legal system has had laws for decades that strive for compliance with previous decisions, for motivation, including indicating the reason for the change in understanding. This is nothing more than the currently named precedents. Not even the influence of the new Code of Civil Procedure is fundamental for the administrative reality, because they are different contexts. The only relatively innovative aspect concerns self-attachment. As for the observance and production of administrative precedents on negligence, inspired by the NLIRBL, the result was surprising: in none of the processes analyzed, during 2 years and 8 months, is there any mention of article 30 of the NLIRBL, even though they are cases full of discrepancies regarding to what would be reasonable to recognize as negligence and the applicable sanctions. On the other hand, the research found that in all DAP’s there was express reference to GAU opinions, prior to NLIRBL, which did not deal specifically with negligence, but with aspects such as prescription, mitigating, subjective element. Furthermore, in consultation with the GCU Knowledge Bank, it was observed that there are hundreds of normative acts, opinions, opinions, on correctional activities, produced over the years. With regard to the impact of article 30 of the NLIRBL in cases of judicialization, the analysis was impaired, because there was no production of precedents along these lines and therefore there is no way to analyze any consequences. Therefore, the hypothesis was tested, but not confirmed, even though it seemed logical to assume that the bodies would be pioneers in granting full applicability to the article. Empirical research exposed the uncomfortable world of “being”, highlighting the gap between dogmatics and reality, pointing out that there is blatant disrespect for impersonality, legal security and calling into question whether there really is an interest, of public authorities, in the production of precedents that will distance casuistry. This reiterates the difficulty that the Administration finds in observing laws that require compliance with standards. It is necessary to establish a system for the production of precedents and to give due publicity to these theses, in order to obtain the necessary unity of law.