STF extinguishes actions against former FHC ministers – 04/15/2024 – Power

The First Panel of the STF (Supreme Federal Court) ordered the extinction, without trial, of two cases that were being processed in the Federal Court of São Paulo due to suspicions of impropriety against former ministers of the Fernando Henrique Cardoso government (1995-2002).

Among the targets of the actions were Pedro Malan (Treasury), José Serra (Planning) and Pedro Parente (Casa Civil), as well as former presidents and directors of the Central Bank.

Rapporteur of the case, Minister Alexandre de Moraes voted to overturn the processes and was followed by the other ministers of the First Panel — Flávio Dino, Cristiano Zanin, Luiz Fux and Cármen Lúcia.

The determination to extinguish the actions was made based on the understanding reached by the Supreme Court in 2022, in a judgment that discussed the possibility of retroactivity of the new Administrative Improbity Law.

The trial took place in a virtual plenary, a platform on which ministers cast their votes, in a session that ended last Friday (12).

The cases against FHC’s former ministers were filed by the Federal Public Ministry between 1995 and 1996, and indicated suspicions of impropriety when the National Monetary Council created Proer (Program to Stimulate the Restructuring and Strengthening of the National Financial System).

The actions questioned financial assistance worth R$2.9 billion from the Central Bank to Banco Econômico SA, as well as other acts.

The case reached the STF in 2002, but a decision by Minister Gilmar Mendes, in 2008, ordered the actions to be archived. The Public Ministry appealed.

In 2016, the First Panel of the STF decided to accept the appeal by the Attorney General’s Office against Gilmar’s understanding, and unarchived the cases.

In the new Improbity Law, the sanction for culpable irregularities has been eliminated and it is now necessary to prove that there was intent – ​​that is, when there is intention or the risk of committing the offense is assumed. In a trial in 2022 that dealt with the topic, the STF had an opinion that was favorable to those accused of improbity. At the time, it was decided that the most beneficial rule would reach ongoing cases.

When judging the request from former FHC ministers this year, Moraes argued that the accusation proposed by the Public Ministry does not classify the conduct as intentional.

“There is no imputation of willful misconduct, but only a description of culpable conduct, consistent with the mistaken analysis of the governing legislation, with the accused, now complainants, believing that they acted in accordance with legal authorization, either through their own legislation or through authorizing act emanating from the National Monetary Council”, said Moraes, in his vote.

The charge, says the minister, is “the negligent conduct of providing financial assistance above the limit permitted for the modality”.

“[O Ministério Público] imputes to the defendants the failure to comply with the duty to prevent operations and take precautionary measures, without indicating or describing intent in the conduct, but rather negligence and malpractice in the conduct of acts by the Central Bank of Brazil”, added Moraes.