The STF and due process

Due process of law has its best-known origin in the English Magna Carta of 1215, precisely in the guarantee of protection of the liberty and property of the human being, with two fundamental requirements: the lawful judgment of one's peers and the law of the land. Of course, this is a set of norms immanent to the Common Law model, during the Middle Ages, that contributed to the formation of the Modern State. The expression due process of law appears more precisely in 1344, when the English Parliament forced King Edward III to accept a law designed to curb his own excesses. Through Coke and Blackstone, the principle of due process reached American law at the time of the Revolution, underpinning a new normative order, although its development would only occur later. It is a principle expressed in the Brazilian Constitution of 1988, with more remote historical origins.

The STF defines very clearly that sanctioning administrative proceedings, punitive or not, obey the pillars of formal and substantive due process. There are administrative proceedings that restrict rights but are not punitive in character. There are judicial and administrative proceedings. Investigations are also subject to administrative due process. And even merely fact-finding acts, preliminary to any investigation. By substantive due process one must understand the principle of the prohibition of arbitrariness by the public authorities. This category, which is common to the common law and civil law legal families, encompasses rights implicit in the Constitution and the laws, which may be recognized by judicial or administrative case law.

In Spain, the prohibition of arbitrariness is explicit in the Constitution, and it was placed there by then-senator Lorenzo Martín-Retortillo Baquer, inspired by Eduardo García de Enterría. In Brazil, the STF has been the builder of the aforementioned principle of prohibition of arbitrariness, deriving it from substantive due process. The prohibition of arbitrary acts, addressed to the public authorities, is a fundamental right of individuals and unfolds in multiple directions. A human being cannot submit to the whim of another, as Roscoe Pound already said, valuing due process.

Formal due process, in turn, encompasses the rights of defense, in their fullness, with the inherent means and remedies, in addition to the adversarial principle. Such rights include rights of statement in the proceedings, equality of arms, the right to be heard. In a recent decision, in the Deltan case (Pet 9.068 MC/DF), Justice Celso de Mello said that “the examination of the constitutional guarantee of due process of law allows us to identify in its substantive content certain elements essential to its very configuration, among which stand out, for their unquestionable importance, the following prerogatives: (a) the right to proceedings (guarantee of access to the Judiciary); (b) the right to summons and to prior knowledge of the content of the accusation; (c) the right to a public and speedy trial, without undue delay; (d) the right to the adversarial principle and to full defense (right to self-defense and to technical defense); (e) the right not to be prosecuted and tried on the basis of ex post facto laws; (f) the right to equality between the parties; (g) the right not to be prosecuted on the basis of unlawfully obtained evidence; (h) the right to the benefit of free legal aid; (i) the right to observance of the principle of the natural judge; (j) the right to silence (privilege against self-incrimination); and (l) the right to Evidence (…)”

The right to due process of law, in the administrative sphere, requires that those under investigation be assured rights related to the delimitation of the object of the investigation, which must rest on a fact that is, in theory, criminally typical and unlawful, prohibiting arbitrariness on the part of the investigator. That is to say, the investigator cannot open an administrative or criminal fact-finding procedure without a typical and unlawful fact at its gravitational center, a fact duly narrated and delimited. Uncertain and indeterminate facts, or atypical ones, do not serve to support the opening of investigative files, on pain of establishing the reign of arbitrariness. Likewise, the right not to be investigated or prosecuted without just cause or for atypical facts is a consequence of the right to substantive due process. Secret and arbitrary investigations took place in dark times incompatible with the lights of a democratic regime. Abusive and arbitrary acts give rise to rights to reparation of damages.

Not for any other reason, Law No. 13,869/19 establishes that it is a crime of abuse of authority, in art. 27, to request the opening of or to open an investigative procedure into a criminal or administrative offense, against someone, in the absence of any indication of the commission of a crime, a functional wrongdoing or an administrative violation, punishing this conduct with six months to two years of detention. The caveat in the sole paragraph concerns the strength of the indications which, for administrative violations subject to inquiries and preliminary investigations, may have a lower standard of proof. In any case, it is prohibited to open investigations, inquiries or preliminary procedures on atypical facts or without just cause.

Likewise, the law prohibits arbitrary criminal, civil, or administrative prosecution, which is also a crime provided for in art. 30. It is likewise a crime (art. 33) to demand information or compliance with an obligation, including a duty to do or not to do, without express legal basis. Such abuse-of-authority offenses show the repudiation of arbitrariness by the overseeing public official. Moreover, they reveal the respect for due process that must be cultivated in relation to the administered and the party under jurisdiction.