The Law of Abuse of Authority and Mining
Passed as a matter of urgency and with questionable procedure, the so-called Law of Abuse of Authority, Law 13,869 of 05.09.2019, has been dividing opinions of the Society and law enforcement.
On the one hand, judges, prosecutors and police argue that the new law makes it difficult to combat crime and corruption, limiting the actions of those agents, which would contradict the Democratic Rule of Law itself.
On the other hand, lawyers and representatives of civil society, including the productive sectors, celebrate the enactment of the new rule, since it limits the often-unmeasured action of public agents against the individual.
Criticism of the law is mainly justified by the considerable number of articles with abstract and subjective concepts, which would bring great legal uncertainty to the actions of judges and prosecutors.
In spite of us agreeing that the subjectivity of some devices may hinder law enforcement in order to combat corruption, some comments should be made about the beneficial contribution that the Abuse of Authority Act can bring to private enterprises, especially mining.
Disregarding the discussion about the circumstances of the presentation of the Bill and approval of the Law – which was considered a response directed to Operation Lava Jato – it is necessary to evaluate to what extent the law can be considered an achievement for the Society in general. This is because, if on the one hand, the intention to hinder the conviction of public figures involved in corruption scandals must be acknowledged that the excesses often committed by judges and prosecutors also jeopardise the state democratic certainty and the legal certainty of absolutely lawful undertakings.
In this sense, this article intends to evaluate, in particular, the action of the Public Prosecutor’s Office, which, covered by the title of “Fiscal law”, acts in a sometimes disproportionate way, eventually generating enormous losses to the particular, as we have seen numerous times in the mineral sector.
According to the Constitution of 88, it is up to the Public Prosecutor’s Office to defend the legal order, the democratic regime of law and the social and individual interests unavailable. To this end, Parquet members have as main attributions the purpose of public criminal action and public civil action.
By law, public civil action lends itself to accountability for moral and property damage to the environment, to the consumer, to any diffuse or collective rights, to the urban order, to the honor and dignity of racial, ethnic or religious groups, among Other. It is rare that, often, the Public Prosecutor’s Office is seen proposing Public Civil Actions without sufficient evidence of the occurrence of the damage that justifies its action in certain cases.
This is what we have observed, especially, in the mineral sector, in which several public civil actions are proposed in the face of miners and public agencies, such as Environment Secretariats and the National Mining Agency, with the intention of paralyzing enterprises miners who often agree with the law and would be a source of development and sustainability.
An example of this was the Public Civil Action filed by the Federal Public Prosecutor’s Office early last year so that the ANM would call for research requirements on areas located in Indigenous Lands in the State of Amazonas, which were overturned by the Agency by lack of regulation of its own. According to the MPF, “each time the National Mining Agency does not defer from a plan an incident research application on indigenous land to ensure the applicant’s right of preference, it is implementing an administrative measure (guarantee of the right of preference) capable of affecting the people who hold the territory on which the application is concerned and without consulting these people, which constitutes an unconstitutional patent.” The action eventually had an injunction granted by the Court, determining that the ANM would reject the search requirements that were found in those situations, in our view of a misguided decision.
It seems to us that in the case above acted the MP with excess, since there was no effective damage to be protected through the managed public civil action. This is because the Constitution expressly provides for the possibility of mining on Indigenous lands in article 231, §3, conditioning it, however, to the authorization of the National Congress and heard the affected communities, and they are assured participation in the results of the mining, in the form of the law. Since the ANM maintained the requirements overdue for lack of specific legislation that disciplines the matter, no effective damage was to indigenous communities with the maintenance of the requirements. On the contrary, the mining rights claimants who have been waiting for promised regulation of the matter for years to see their priority rights – these, yes, in fact existing – become mining securities. It should be emphasized that it is not our intention here to make sense of the validity of the requirements, but only to analyze the scope of the MP’s initiative and the decision of the judgment.
In the same sense, the ACP also proposed before the Federal Court of Amazonas that aims to cancel securities granted in areas covered by Sustainable Use Conservation Units that do not have management plan In these cases, with the exception of the Extractive Reserve, mining activity is allowed if contemplated in the Unit Management Plan. The omission of the Government in issuing the Management Plan of UC ends up harming the particular that would have the right to exert mineral activity – economic activity provided for by law as public utility and of national interest – but it is not, the omission, the object of questions by the public prosecutor.
Not to mention the numerous civil investigations initiated without a notorious just cause, causing their mere existence, often, to induce other administrative bodies to stop continuing licensing processes, grants and concessions, for simply fear the possible consequences arising from their acts when they know they are being “accompanied” by the public prosecutor.
It is perceived, therefore, that the excessive action of members of the Public Prosecutor’s Office is not limited to the criminal sphere, being commonly seen also in the civil, environmental and administrative sphere, which leads us to reflect that the Law of Abuse of Authority could have been more to also predict hypotheses such as those treated here.
The Public Prosecutor’s Office, as representative of the State, has the presumption of legality of its acts, and for this reason it is clear the imbalance between the parties to the proceedings. For this reason, it must be subject to the general principles of the Administration, such as legality, impersonality, advertising, morality, efficiency, loyalty, objectivity, reasonableness, independence and, above all, that of Impartiality. The violation of any of these principles by parquet constitutes a real violation of due process, public and social interests and the Democratic Rule of Law.
As an Institution, the Public Prosecutor’s Office has a tooling at your disposal. In addition to its autonomy and constitutionally planned guarantees, it has its own resources and instruments. It has the power to issue notifications, request information and determine due diligence in order to achieve its goals. It cannot therefore fail to observe – with much more caution than the particular – compliance with the guarantees and rights of third parties, individual or collective. This is indeed his function and it was for this that the Constitution of 88 conferred on him his condition, being called by some including “Fourth Power”, since it exercises moderation among the other powers.
The initial charge made in the seat of Public Civil Action, or mere investigation through civil inquiry, are already sufficient to tarnish the image of the defendant and cognitively influence the judge, even if unconsciously. Therefore, it is undeniable that a better definition than the acts of abuse of power committed by members of the Public Prosecutor’s Office is in the interests of the whole Society.
Despite the Law of Abuse of Authority having given greater focus to abuses committed in the criminal sphere, there is a brief forecast applicable to the civil sphere. Article 30 provides for imprisonment of 1 to 4 years and fine for those who initiate or pursue criminal, civil or administrative pursuit without just reasoned cause or against those who know not guilty. The aforementioned type is similar to that of libelous denunciation provided for in Article 339 of the Penal Code: ” Giving cause to the establishment of police investigation, judicial proceedings, initiation of administrative investigation, civil investigation or misconduct action against someone, imputing him crime that he knows him innocent.” The crime of the Penal Code, however, is subject to a penalty of 2 to 8 years of imprisonment, which proves to be a legislative setback
On the other hand, the expression “without reasoned cause” was included, which, at least in the sits, would give greater scope to the conducts repudiated by law, but the subjectivity that involves such expression may lead to its little practical applicability. It is essential, therefore, that the people, society and especially the productive sector, especially miners, allow themselves to be limited for this, since in the courts we can demonstrate and build favorable jurisprudence and reverse the current situation.
The backsliding of the law on the penalty to be applied and the subjectivity of the kind lead us to believe that the opportunity to treat the unfounded, careless and sometimes reckless conduct of members of the Public Prosecutor’s Office has been more severely addressed. civil servants and Public Civil Actions devoid of fair grounds, so that the Mineral Sector will continue to be the subject of hysterical and fanciful accusations that so much harm its development. For that reason, it is up to this not to cower, but to take on this cause more, as we have done in recent years.
Finally, we clarify that our intention is not to criticize the fight against impunity, corruption or crime. We advocate the penalty of those guilty for environmental and social tragedies, as seen in recent years in our Mining. What we hope here is to reflect on the need for all agents who act with delegated powers of the State to do so in fact in favor of society. In this sense, we conclude that defending the legality of the Law on Abuse of Authority – albeit with caveats – means fighting for the development of the mineral sector and other productive sectors of the country.
This article is authored by Luis Maurício Azevedo (OAB/RJ 80.412) and Ianê Pitrowsky da Rocha (OAB/RJ 126,000), respectively partner and Legal Manager of FFA LEGAL, a firm specialized in serving companies in the mineral sector, and directed to its customers and partners, being owned by FFA LEGAL.