The concept of administrative sanction is a recurrent theme in my doctrine. What are the new paradigms of the sanctioning administrative law in Brazil that must be considered within this context that we have been working on since 1999 and that involve the new proposed concept of administrative sanction in our doctrine and in the jurisprudence of the Brazilian courts, which have welcomed the doctrine of our book “Sanctioning Administrative Law”, of the year 2000.

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The concept of administrative sanction adopted by our work consists in that the administrative sanction is an affliction or punishment because it has emotional or distressing effects with a general and potentially pro-future scope imposed by the public administration, materially considered, or by the judiciary power or corporations of public law to an administrative or jurisdictional public agent, whether an individual or legal entity, subject or not to special relations of subjection to the State as a consequence of an illegal conduct typified in a prohibitive rule with repressive or disciplinary purpose in the formal and material scope of administrative law.

The main transformation in the concept of administrative sanction in Brazilian law that we introduced in our work in 1999 in an article published in the Spanish RAP (revista de administracion publica / Journal of public administration) and later developed in our 2000 book on sanctioning administrative law, and that impacted the jurisprudence of Brazilian courts, refers to the formal element of the administrative sanction.

The concept of administrative sanction has always had a merely formal element of administrative law. This is the classic concept of administrative sanction in Europe in general, in Spain, in Italy, in the European countries, and in this article under the title: Corrupción Y Mala Gestión de la res publica: el problema de la improbidad administrativa y su tratamiento en el derecho administrativo sancionador (Corruption and mismanagement of public affairs: the problem of administrative impropriety and its treatment in sanctioning administrative law). For the first time I translated the Brazilian administrative impropriety law into Spanish and had the opportunity to argue that the sanctions of the impropriety law are applied by judicial authorities and, hence, the necessary distinction between administrative sanctions “stricto sensu” and administrative sanctions “lato sensu” so that the impropriety law provides for sanctions under administrative law since they are subjection relationships susceptible to sanctioning administrative law.

They refer to torts committed by public officials or private individuals against the principles and rules that govern the public administration; therefore, without a doubt, they are administrative sanctions. This Brazilian law that I translated into Spanish and that is published in RAP journal 149 of 1999 under the title that I just mentioned, shows that there is the possibility, under the democratic principle, for the legislator to conform torts and sanctions of administrative law for application by the judiciary. These are illegal activities that belong to administrative law, or to the branch of administrative law. Therefore, administrative law is not a statutory law that regulates or protects solely the activity of the public administration. In this sense, this classic conception of administrative law as a branch of law that formally disciplines the activities of the public administration “stricto sensu” and not the activities of other State powers is a view that should be overcome.

Why? because the democratic principle allows the legislator to bring other settings under the free conformation of torts and sanctions within the framework of other legal branches that may encompass different normative frameworks.

This was made possible by the Brazilian law 8.429 of 1992 and also with the Brazilian anti-corruption law that is the Brazilian law 12.846 of 2013 that also provided for torts and administrative law sanctions for companies, for legal entities, that practice acts of corporate corruption. These are administrative sanctions applicable by the judiciary and not by the administrative authorities or, alternatively by administrative authorities and by judicial authorities and, even so, they are administrative sanctions, they are sanctions of administrative law.

This was also confirmed with the application of the sanctioning administrative law framework of the legal regime of the sanctioning administrative law to these laws in Brazil, as we proposed in our legal writings, because we proposed in our legal writings that for these laws it would be necessary to apply the legal regime of the sanctioning administrative law due to them being laws of the sanctioning administrative law with applicable administrative sanctions from these laws within the concept of administrative sanctions and, therefore, the effects, the principles and the rules of the sanctioning administrative law would apply.

Consequently, Brazilian courts have applied to these important Brazilian laws, the law of administrative impropriety that regulates torts and sanctions on acts of public mismanagement, on acts of corruption by public agents or acts of public mismanagement, not only corruption, but also endemic inefficiency of public agents and private individuals who connect with public agents, sanctions of administrative law such as disqualification from holding public office, such as loss of public office, and suspension of political rights, are sanctions that are very similar to criminal sanctions, but they are sanctions applied by magistrates who do not have criminal jurisdiction.

These are sanctions applied by magistrates who have jurisdiction – here there is no administrative jurisdiction – it is an extra-criminal jurisdiction, a civil jurisdiction, that applies material rules of administrative law – and this dogmatic construction that we articulated from a non-statutory administrative law stricto sensu point of view is based on a conception of administrative law connected to the constitution.

The constitutionalization of administrative law allows us to visualize, on the one hand, a statutory administrative law, which is the classic administrative law, as stated by Eduardo García de Enterria, the administrative law that was born in the French Revolution with the public administration, the administrative law that comes to discipline the activities of the public administration. However, with its evolution, the constitutionalized administrative law, the administrative law that was constitutionalized is developed within the framework of the constitution. The constitutionalization of administrative law also demonstrates a substantialist perspective of administrative law.

And such dimension of administrative law is seen mainly in the Civil Service law, for example. Public duties, the theory of public duties, how the theory of public duties works, the duty of administrative propriety, the public duties and the principle of administrative morality, which was developed in France by Maurice Hauriou.

The administrative duties are substantial duties, they are duties of substantial dimension and not formal, so, for example, through the free conformation of torts and sanctions it is possible for the legislator, based on the democratic principle, to bring to the judiciary a series of torts and sanctions of administrative law that can be applied directly by the judiciary through administrative law sanctions, because they are penalizing torts of administrative law and that are not affected, are not applicable by the public administration.

At least, this is the reality that we have possible in any democratic country and also in Brazil, because this is an almost ontological configuration of administrative law, it is a characteristic of administrative law in its essence. Constitutional administrative law, constitutionalized administrative law has an essence that is, on the one hand, its historical statutory roots and, on the other hand, its substantial dimension. Its substantial dimension allows it to conform torts and sanctions based on aspects that are not related to the directly binding activity of the public administration. In Brazil, this has been clearly established in jurisprudence and this concept has not yet been unequivocally understood by most of the doctrine, but jurisprudence has, the Federal Supreme Court, the Superior Court of Justice and the Public Prosecutor’s Office as well.

The Brazilian anticorruption microsystem recognizes the legal nature of the sanctioning administrative law for Laws 12846 of 2013 and 8429 of 1992, using our doctrine to support this. And the concept of administrative sanction is an essential part for this construction. And the material dimension of administrative sanction is crucial for this conceptual articulation. This new conceptual element of administrative sanction makes it possible to broaden its scope to sanctioning types applied directly by the judiciary and to set in motion the legal regime of sanctioning administrative law for these new laws that can be applied by the judiciary directly to these new torts and sanctions created by the legislative branch, based on the democratic principle with all the necessary dogmatic evolution. Hence, the new concept of administrative sanction in Brazil, essentially has this novel formal element – that is how we can describe it. Regarding the objective element, the distressing effect of the sanction, which is another classic element of the sanction; this distressing element of the sanction, we can say that it is not incompatible with economic theories of law.

The economic theories of law or other psychological theories of law or sociological theories may bring fundamental contributions to the understanding and interpretation of the sanctioning administrative law, but the distressing element of the sanction remains an essential element for its understanding, since the sanction is not a prize, the sanction cannot be confused with a rewarded measure. In this sense, the distressing element is an objective element inherent to the sanction. The sanction is a punishment; it remains a punishment. For many, the sanction should not be a punishment. For some, when we say that the sanction is a punishment, it brings a retributive conception, which would be an outdated conception of sanction. But this is not how it should be considered. At least in Brazil, the courts do not follow this path. When we say that the sanction has distressing effects, we try to conceive a vision about a central and objective element of the sanction to distance it from rewards.

It is not about viewing the sanction as a measure that produces subjective pain or subjective suffering on someone, this is not under discussion. The psychological element of the recipient of the sanction is not under discussion. That is not to be discussed, the feeling of the recipient of the sanction. The distressing effect is not to be confused with the feeling of the recipient of the sanction. The distressing effect is for the sanction not to be confused with a reward. We do not defend that the sanction must cause pain in its recipient, but that the sanction must have a distressing effect in the sense that it does not produce rewards, but punishment. And the distressing effect must be objectively recognizable. We are also not discussing the goals of administrative penalties or we would not be able to maintain an analogy between the goals of criminal and administrative penalties. The perspective of the distressing effect is objective and not subjective. For example, administrative regulatory law has multiple disciplines with which it may interface and this transdisciplinary nature shows its complexity, but economic criminal law also has complexity and transdisciplinarity.

The punitive purpose of the sanction is not incompatible with the disciplinary purpose. Nevertheless, it is different from the compensatory claim. For example, the exercise of the disciplinary power is different from the compensatory power, the exercise of disciplinary power is also different in some ways from punishing power, but it is a kind of punishing power because it has an educational objective. The punitive claim, therefore, is an essential element of the administrative sanction. Criminal law, in turn, has resocialization or reeducation purposes for its recipient. This is a mark of the retributive characteristic of criminal law that is accepted in the jurisprudence of Brazilian courts contrary to the functionalist doctrine, which is not accepted in the jurisprudence of the Brazilian Superior Court of Justice and the Federal Supreme Court regarding the purpose of criminal penalties. As far as administrative penalties are concerned, the teleological element of the sanction is the punitive purpose. The punitive purpose shows that there is a clear historical relationship between penalty and repression. The recipient of the penalty must know the prohibition, must know the meaning of the prohibition in order to be able to conduct his behavior in the opposite direction to the prohibition.

The penalty also has an intimidatory perspective, the intimidatory effect of the penalty supports the idea of avoidability of the prohibited act, so the penalty reaches imputable persons and avoidable acts, and for legal entities the acts must be avoidable, and there is also for legal entities, along these lines that we support, a kind of culpability.

The intimidation theory of the penalty does not inhibit economic approaches to the law or sanction, for example, economic or psychological or behavioral-psychological approaches to conduct or law also bring a view of incentives or persuasion mechanisms that are very important. The motivation of people, the interpretation of conduct, the interpretation of laws, the interpretation of the incentives that are put into the laws, requires mechanisms of economic analysis of law, of psychological-behavioral analysis, and of other disciplines, of a transdisciplinary view of law, of regulation, which are certainly very important contributions to sanctioning administrative law or to criminal law. For example, for regulatory law, this transdisciplinary metric is crucial.

It is true that normative functionalism argues that intimidation is not the essence of punishment insofar as punishment is a form of reaffirmation of the existing legal order. For normative functionalism, punishment is a reaffirmation of trust in the normative system, and the mission of punitive law is not to prevent damage to legal property but to confirm the validity of the norms. However, what we perceive is that in order to reestablish this trust in the norms it is necessary to impose an empirical evil and this empirical evil is still, at least in our conception of administrative sanction, this evil or punishment is the sanction, no matter its format. So this empirical evil is an intrinsic attribute of the concept of sanction.

In this context, the general intimidating function of the penalty is one of its essential functions and this has always been a general characteristic of the penalty as repeatedly affirmed by the Brazilian Federal Supreme Court. Therefore, I here reaffirm that essential elements of the administrative penalty are the formal element, as mentioned before, with this novelty that it has to now absorb a material conception of administrative sanction, a substantial dimension of administrative law, not only the statutory law as was the classic view of the administrative law experts, among which, my professor and supervisor of my doctoral thesis, Eduardo Garcia de Enterria, among many others from his school of professors, but in Brazil this conception has been concretely developed based on our doctrine of sanctioning administrative law, it was the first book with this title in Brazil – sanctioning administrative law – the first Brazilian chair of sanctioning administrative law was at the Federal University of Rio Grande do Sul, in the doctoral and master’s courses, where we introduced this discipline.

This material element, this formal element of the administrative conception allows administrative sanctions to be applied also by the judiciary. The objective element, the distressing effect of the sanction in this conception where the sanction is not confused with rewards and the distressing effect is an objective perceptible element of the administrative sanction, a dimension that is not confused with the feelings of the recipient of the sanction, and the teleological element of the sanction, the punitive purpose to separate the administrative sanction from other measures is very important. These are the central characteristics of the administrative sanction. And it is very important to identify the administrative sanction, because from its identification we have the possibility to present the sanctioning administrative law’s legal regime, which, as we know, has been developing since the beginning of the 20th century.

In Europe, the European Court of Human Rights has reinforced, as Ricardo Alonso Garcia presented in this seminar with examples from the Italian Constitutional Court, from the European Court of Human Rights in the 1990s and much more after that, at the international level, the primacy of fundamental rights at the international level from the application of the principles and rules of criminal law to the scope of sanctioning administrative law and the European Constitutional Courts have introduced all these changes to unify these guarantees. This has also occurred in Brazil, especially from the 2000s on. And today these guarantees come not only to the administrative sphere, stricto sensu, of disciplinary law, of administrative law applied by the public administrations, but also in these very important laws that I have mentioned in my speech, which are torts and sanctions applied by the judiciary, but which are not confused with criminal laws, but are laws of sanctioning administrative law. These are laws of administrative sanctioning law; laws that require the legal regime of sanctioning administrative law and are applied by the judiciary

With these brief reflections and my apologies for the incident we had with the power shortage here in my office in Brasilia, I conclude my lecture thanking once again the audience, those who honor us in this seminar in tribute to a great professor, Tomas Ramon Fernandez, who has many published works and is a reference for all of us in Brazil, in Latin America, in Europe, and who deserves this tribute from the International Institute for State Law Studies, with great institutions jointly supporting it, because we have to pay homage to the professors so that they will always know that they are great, that they are important, that they are crucial to the progress of civilization.

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