The fundamental right to comprehension and the digital revolution as an agenda for the Brazilian Public Prosecution Service

Fábio Medina Osório

Lawyer · Former Minister of the Attorney General’s Office · Former Public Prosecutor in Rio Grande do Sul · Doctor of Administrative Law from the Complutense University of Madrid

Abstract

This article examines the fundamental right to comprehension of the decisions of public authorities as a constitutional requirement derived from the principles of publicity, the duty to give reasons for decisional acts, due process of law and the prohibition of arbitrariness by public powers. It is argued that the digital revolution and the advancement of artificial intelligence render imperative the structuring of integrated legal databases, with national algorithmic standardisation, as a condition of institutional integrity in the public sector. The article also examines the pioneering role of the Brazilian Public Prosecution Service in this process, the critique of bureaucratic façade compliance and the need for a culture of statistics and continuity in State policies as prerequisites for national development.

Keywords: Right to comprehension; institutional integrity; legal databases; artificial intelligence; Public Prosecution Service; compliance; State policies; statistics.

1. Introduction

The digital revolution is not an external phenomenon to Law — it reconfigures it from within. The advancement of artificial intelligence and the proliferation of large-scale databases impose on legal institutions a choice: to adapt with scientific rigour or to maintain opaque, incoherent and uncontrollable decision-making structures. This article proposes that such adaptation is not merely a technical convenience, but a constitutional requirement.

The central axis of the argument is the fundamental right to comprehension of the decisions of public authorities — a right not expressly stated in the text of the Federal Constitution of 1988, but which emerges from the systematic conjunction of the principles of publicity, duty to give reasons, due process of law and prohibition of arbitrariness by public powers. In the age of artificial intelligence, this right assumes precise institutional contours: it demands the structuring of integrated, auditable and statistically controlled legal databases.

2. The Fundamental Right to Comprehension of Public Decisions

2.1 Constitutional Foundations

The right to comprehension does not appear expressly in the catalogue of fundamental rights in the Constitution of 1988. Its construction is necessarily systematic: it results from the interconnection between the right to publicity of judicial and administrative acts, the right to reasons for decisions, substantive due process of law and, especially, what Professor Eduardo García de Enterría — Professor of the Universidad Complutense de Madrid and one of the greatest administrative law scholars of the twentieth century — termed the principle of the prohibition of arbitrariness by public powers.

This principle, extracted since the nineteenth century from the jurisprudence of the United States Supreme Court, translates the requirement that the exercise of public power be rational, coherent and traceable. In the digital age, this requirement materialises in a concrete manner: without structured databases and qualified statistics, it is not possible to verify whether similar decisions receive equal treatment, whether there are systematic biases in decision-making patterns, or whether precedents are respected consistently.

2.2 Institutional Radiations of the Right to Comprehension

The right to comprehension radiates consequences beyond the Judiciary. It reaches the Public Prosecution Service — whose leniency agreements, civil non-prosecution agreements, conduct adjustment terms and disciplinary jurisprudence need to be organised in databases that allow self-referencing, verification of coherence and effective implementation of the principle of institutional unity. It equally reaches the administrative decisions of municipalities, states and the Federal Union, public contracts, privatisations and the provisioning of liabilities.

The Judiciary is the institution that has advanced most in this area, but even there significant gaps persist for research and statistical control purposes. In the other branches and institutions, the void is even more pronounced: administrative decisions that affect and restrict fundamental rights continue, to a large extent, without algorithmic parameterisation, without a structured database and without national auditability.

3. Legal Databases and National Algorithmic Standardisation

3.1 The National Dimension as a Structural Requirement

One of the recurring errors in the debate on public security and institutional integrity is the assumption that criminal and decisional phenomena are essentially local. The reality is otherwise: criminal organisations such as the Comando Vermelho and the PCC operate with transnational logic, recruiting human resources throughout the Brazilian territory and beyond its borders. Similarly, patterns of corruption, decisional distortions and administrative irregularities follow systemic dynamics that only become visible when data is analysed at a national scale.

The draft law on the National Database, drawn up within the Ministry of Justice, points in this direction by conceiving a data interconnection with a unitary national vision, in which the Union collects, with algorithmic standardisation, data from all state territories. This standardisation is not a technical detail: it is the condition of possibility for any reliable statistical analysis. Fragmented data, with heterogeneous classification criteria and irregular temporalities, does not produce knowledge — it produces the illusion of knowledge.

3.2 Public Liabilities, Risk Management and Integrity in Agreements

One aspect frequently neglected in discussions of institutional integrity concerns the management of public sector legal liabilities. In the private sector, mergers and acquisitions require rigorous legal due diligence to identify and price the liabilities that will be absorbed. The public sector, however, frequently operates without structured legal risk analysis — which results in multi-billion losses in state-owned enterprises, unjustified refusal of advantageous agreements and the artificial generation of court-ordered debts.

The refusal of agreements by the public manager — when the latter prefers to pass to his successor the burden of a definitive defeat, rather than accepting a discount that would be economically rational for the public purse — is, in many cases, an act of administrative misconduct that penalises the taxpayer. Without databases that parameterise the jurisprudence and allow the real risk of each dispute to be assessed, this arbitrariness remains invisible and uncontrollable. The jurisprudence that denies the administered party the subjective right to an agreement must be revisited: what is at stake is not merely the convenience of the manager, but the prohibition of arbitrariness that the constitutional principle demands.

4. Beyond Bureaucratic Compliance: A Transformative Integrity

Compliance, both in the private and public sector, has degenerated in many contexts into a façade industry: formal procedures that generate cost and the appearance of conformity without producing real institutional transformation. This bureaucratic compliance — merely formal and without real effectiveness — is not only ineffective: it is counterproductive, as it demoralises the culture of integrity it purports to promote.

The integrity proposed here is of a different nature: pragmatic, measurable and consequential. It manifests itself in statistical control over decision-making patterns, in the identification of discriminatory biases or ideological subjectivisms in decisions, in the effective compliance with precedents and in the traceability of institutional choices. A decision-making pattern that only favours a particular law firm, that reveals systematic ideological distortion or that ignores binding precedents is not merely technically incorrect — it is a violation of the fundamental right to comprehension and of the guarantee of equality.

In this sense, the digital revolution is not an instrument of external control over institutions: it is, rather, an opportunity for institutional self-reflection and self-referencing. Artificial intelligence tools, when correctly integrated with structured databases and a culture of qualified statistics, allow institutions themselves to identify and correct their internal distortions — before those distortions become scandals.

5. The Public Prosecution Service as the Vanguard of the Institutional Digital Revolution

5.1 The Resolutive Model and the Overcoming of Institutional Fragmentation

The Brazilian Public Prosecution Service has occupied, in recent years, a vanguard position in incorporating the digital revolution into the exercise of its institutional functions. This leadership is not accidental: it stems from the very nature of the institution, which holds criminal investigatory power, the standing to bring criminal action and an extrajudicial conflict resolution function that positions it as the principal instrument for relieving the burden on the Judiciary.

The metaphor of the Public Prosecution Service as a judge at the doors of the courts — coined by the late prosecutor from Rio Grande do Sul, Paulo Pinto de Carvalho, back in the 1990s — remains relevant and must be deepened: the modern Public Prosecution Service needs to operate as a great law firm of Brazilian society, with institutional unity, human supervision over artificial intelligence tools and national statistics that allow teams to be structured with an integrated strategic vision.

5.2 The Judiciary as a Victim of Predatory Actors

The Brazilian Judiciary suffers from a tarnished image that, in significant part, is not the result of its own failings, but of the spurious instrumentalisation by actors — public and private — who use litigation as a mechanism for postponing the fulfilment of legitimate obligations. Predatory claims, repeated dilatory manoeuvres and the systematic refusal of agreements by public managers to pass to their successor the burden of inevitable defeats constitute forms of abuse of process that violate the fundamental rights of elderly persons, legitimate creditors and citizens who depend on the system for the realisation of their rights.

These actors need to be identified, mapped and held accountable. Artificial intelligence tools and integrated databases are instruments precisely for that purpose: to make visible patterns of abusive litigious behaviour that, in the current fragmentation of data, remain hidden.

6. A Culture of Statistics, Administrative Continuity and State Policies

A country without a culture of statistics will not become a developed country. This statement, apparently simple, contains a structural critique of the Brazilian public management model: without national mapping of crime, without a scientific investigatory standard, without strategic planning based on data, each change of government may completely redirect policies that require decades to produce results.

The report of the Federal Court of Audit on the suspension of public works is revealing in this regard: the principal cause of the stoppages was not the fight against corruption — it was the patrimonialist culture that prevents the political successor from continuing the work of his predecessor, because it does not carry his name or his brand. This patrimonialism is not merely a moral defect: it is a systemic failure that can only be corrected by State institutions with the capacity for continuous monitoring and structured institutional memory.

In this context, institutions such as the Public Prosecution Service, the Attorney General’s Office, the Comptroller General of the Union, the Central Bank and CADE represent precisely the model of State policy that Brazil needs to consolidate: supra-partisan institutions, with administrative continuity, accumulated technical capacity and independence from electoral-political cycles. The digital revolution, when incorporated by these institutions with rigour and integrity, has the potential to transform this model from exception to rule.

7. A Note on Administrative Misconduct and the Subjective Element

The thesis established by the Supreme Federal Tribunal that culpable administrative misconduct would be unconstitutional merits criticism. If accepted in its broadest terms, the logic of this position would lead to unsustainable results: culpable misappropriation of public funds would equally be unconstitutional, culpable environmental offences would lose their improper character, and any culpable form of violation of public patrimony would be immune to the sanctioning regime of the Administrative Misconduct Law.

The constitutional root of the concept of misconduct — gross error — does not require specific intent as a universal prerequisite. Serious culpable misconduct, particularly where it results from systematic negligence or a refusal to incorporate available control instruments, is compatible with the constitutional sanctioning regime and necessary for the effective accountability of managers who, by omission, cause multi-billion losses to the public purse.

8. Conclusion

Integrity in the public sector is not an abstract value: it is an operational requirement that, in the age of artificial intelligence, translates into concrete structures of data, statistics and algorithmic auditability. The fundamental right to comprehension of the decisions of public authorities — derived from the systematic conjunction of the constitutional principles of publicity, duty to give reasons, due process of law and prohibition of arbitrariness — is the legal foundation of this requirement.

The Brazilian Public Prosecution Service occupies a singular position in this process: it is the institution with the greatest investigatory power, the holder of the standing to bring criminal action and the actor with the greatest potential to relieve the burden on the Judiciary through extrajudicial solutions. To realise this potential, it must build a national data infrastructure, overcome institutional fragmentation and embrace a culture of statistics that transforms the exercise of its functions from intuitive to scientific.

The digital revolution is not a threat to legal institutions — it is the greatest opportunity that Brazilian Law has had in recent decades to rebuild itself on solid, transparent and equal foundations. Taking advantage of it requires institutional courage, investment in technology and, above all, the willingness to submit one’s own decisions to the scrutiny one demands of others.

References

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Fábio Medina Osório · International Institute for the Study of State Law.