Ne bis in idem na aplicação cumulativa das penas de multa na ação de improbidade e no processo penal

Resumo

An illegal act by an individual can lead to conviction in multiple spheres, especially in administrative misconduct actions and criminal actions. It is common that the same individual ends up sentenced, by the end of both these proceedings, to penalties specific to each legislation – Penal Code and additional criminal legislation, on one hand, and the Administrative Misconduct Law, on the other –, as well as to the payment of fines in both these judicial spheres, for the same facts that originated both the proceedings. In these cases, the fines have punitive nature and affect the convicted person’s fundamental rights, and as such the application of fines to the same individual in both spheres can result in violation of the ne bis in idem principle. The stipulation, therefore, must be duly justified by the court, especially in case of high amounts. Throughout the research, it is shown that the ne bis in idem principle/rule is applicable in the criminal as well as in the administrative sphere, but when the application refers to proceedings in both these spheres, it is common that the violation of the principle that prohibits the double punishment is refuted on the basis of the independence of the sphere’s argument. Given that in Brazil the communication between these spheres has not yet been sufficiently analyzed in court cases, the research includes case-law from the European Court of Human Rights and the Court of Justice of the European Union, that have already dealt with these situations and stipulated criteria to identify whether there is or is not any violation of the ne bis in idem principle in the application of sanctions by different spheres. The research shows that the cumulation of pecuniary sanctions in administrative misconduct and criminal conviction sentences can effectively violate the ne bis in idem principle and the proportionality in the stipulation of the sanctions. In the end, it is concluded that the court, based on the principle of proportionality, when stipulating a fine in a giver procedure, must verify whether the same individual has been sentenced to a fine in other sphere regarding the same facts, in order to avoid the stipulation of an excessive and disproportionate sanction and to avoid violating the ne bis in idem principle.

Ficha do documento

Tipo

Dissertação

Ano

2022

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/32203

Temas

Economia

Palavras-chave

SanctionProportionalityFundamental rights violationNe bis in idemMultaProporcionalidadeNatureza sancionatóriaViolação direitos fundamentaisDireitoDireito penal econômicoProcesso penalMultasImprobidade administrativaProporcionalidade (Direito)Direitos fundamentais