Civil non-prosecution agreement: The clash between article 17-B, § 3, of the Law of Administrative Improbity (amended by Law nº 14.230/2021) and the constitutional autonomy of the Court of Auditors

Abstract

The aim is to demonstrate the correctness of suspending the effectiveness of Article 17-B, paragraph 3, of Law 8.429/1992, amended by Law 14.230/2021 (which regulates the participation of the Court of Auditors in the agreement of non-criminal prosecution), through a precautionary measure within the scope of the Supreme Court, given its incompatibility with the Constitution, considering that: (i) only the Legislative Branch can request the Court of Auditors with a specified deadline, never the Public Prosecutor's Office; (ii) the practical consequence of the mandatory manifestation – within the ninety-day period mentioned in the provision in question – would be the hindrance of the efficient exercise of its constitutional competences, due to an assignment created by ordinary law; and (iii) the binding nature of a temporary manifestation violates compliance with the principle of due process of law within the Court of Auditors. For the study, a bibliographical review and documental research was used, classifying this article as legal-comprehensive and legal-propositive, in which, as a conclusion, a brief proposal of intrastate cooperation guided by consensus is made.