• Ferraresi Cavalcante – Advogados

Brazilian Government Accountability Office reaches Brazilian BAR

Atualizado: 17 de mai. de 2019

Can the Tribunal de Contas da União (TCU), Brazilian equivalent to the US Government Accountability Offices, approves the accounts of the irregular OAB (Brazilian equivalent to BAR) managers; fine them; and recognize them unfit for the exercise of public special roles?

In a unanimous decision of the TCU plenary this Wednesday, November 7, 2018, the Court of Accounts drew up a historical decision that, unlike precedents of the Court itself and the STF, has stated that the OAB must submit to the supervision of TCU.

The matter was dealt with by the TCU in case TC 015.720/2018-7, in the report of the Minister Bruno Dantas, in which the technical area of ​​the Court considered that the presentation of accountability to the TCU would be required by the OAB, due to the legal nature of the institution - "autarquia sui generis" - (special authority) as well as the public interest of the financial resources that the OAB collects and manages.

In its statement in the file, the Federal Council of the OAB maintained that the matter would be protected by the "res judicata", since it was appreciated by the Tribunal Federal de Recursos (TFR) in the writ of mandamus, "mandado de segurança" in Portuguese, No. 797, as well as by the STF in ADIn 3.026/DF and also by the own TCU in ruling 1,765/2003-TCU-Plenary. The OAB also argued that it would not be a "typical authority" and that, in its view, the resources it manages would not have a tax nature.

The Case Spokesman unconsidered the presence of the "res judicata" regarding TCU's own decision since it considered that the act of deciding who was accountable was typically administrative, and the Court of Auditors established how it should exercise its constitutional powers. would be subject to the typical immutability of decisions of judicial nature.

The profound changes in the legal system since the deliberation of the Judiciary in 1951 were cited to justify the non-incidence of res judicata arising from the decision of the former TFR and with a view that ADIn 3.026 judged by the STF would not have dealt with the duty of to render accounts of the OAB - in addition to only being able to speak of something ruled formal in the hypothesis -, the thesis of the "res judicata" was superseded by the TCU.

On the merits, the TCU judged that it has competence to exercise control over the administrative acts of the OAB, due to its classification as an entity belonging to the Federal Public Administration, which manages public resources.

Thus, the ruling (adopted by judgment 2573/2018-TCU-Plenary) - which may still be attacked by a writ of mandamus before the STF and subject to a constitutional complaint - is considered, considering the modulation of effects provided for in the TCU decision itself, the OAB will be subject to the jurisdiction of the Court from the year 2020, whose accounts must be provided from 2021.

The OAB will then be required to be accountable and will be subject to audit by the TCU through audits, inspections and all monitoring instruments provided for in the rules of the Court. Can the TCU judge the accounts of the irregular OAB managers; fine them; make them unfit for the exercise of positions in commission and function of trust; prudently remove a director of the Order who, for example, makes it difficult to perform an audit; in addition to condemnation to reimburse eventual damage to the treasury, with a referral of the decision to the Federal Public Prosecutor to adopt the provisions of its jurisdiction that it deems pertinent, such as to bring lawsuit for administrative impropriety and to pressing charges for conduct that it deems illegal.

It could be said that, unlike the other professional councils, the OAB deserved in the institutional design made by Brazil's Federal Constitution a different role, not limited to a mere class of prosecutor, having an important role in the defense of the Democratic State of Law, as well as the Administration of Justice.

We reflect, in this brief report and analysis of the recent decision, that the constitutional mission of the OAB may be impaired by the decision in question, however, as the signed agreement had its effects modulated, only including the Order as an accountability unit from the management of 2020, we will certainly have the opportunity to know the Supreme's Court position on the subject.

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