Medina Osorio Advogados

Fábio Medina Osório, Managing Partner at Medina Osório Advogados, former Public Prosecutor, and former Advocate General of the Union of Brazil, will be a speaker at the XXVI National Congress of the Brazilian Public Prosecution Service (CONAMP), taking place from 11 to 14 November 2025 at the Ulysses Guimarães Convention Centre in Brasília (DF). He will participate in the Dialogue Forum entitled: “Governance, Compliance and Integrity – The Fundamental Right to Good Public Administration” Date: 13 November 2025 Time: 4:45 p.m. – 6:00 p.m. Venue: Main Auditorium The session will be chaired by Romão Ávila, Attorney General of the State of Mato Grosso do Sul, and will feature contributions from: ● Justice André Mendonça (Federal Supreme Court); ● Professor Nicolás Rodríguez García (University of Salamanca, Spain), an internationally recognised scholar in Criminal Law and Public Governance; ● Prosecutor Luciana Ásper y Valdés (Federal District); ● Prosecutor Maurícia Marcela Cavalcante Mamede Furlani (Ceará); ● Prosecutor Adriano Marcus Brito de Assis (Bahia); and ● Fábio Medina Osório (OAB), lawyer, professor, and author of leading works on Administrative Sanctioning Law and Public Integrity. Medina Osório currently serves his third term as President of the National Commission on Administrative Sanctioning Law of the Brazilian Bar Association (Federal Council), which he originally founded. The Opening Ceremony of the Congress will take place on Tuesday, 11 November, at 7:00 p.m., and will feature the Keynote Lecture by Prosecutor General Paulo Gonet. Bringing together more than 3,000 members of the Brazilian Public Prosecution Service, the Congress is regarded as the most significant national forum of the profession, fostering high-level debate on institutional development, democratic governance, public policy design, and innovation within the justice system. The full programme is available at: https://www.conamp.org.br/imprensa/noticias/9541-programacao-xxvi-congresso-nacional-do-ministerio-publico.html

    I.        INTRODUCTION In this essay, I propose to develop critical reflections on Criminal Case No. 1,666/DF, adjudicated by the Supreme Federal Court, with Justice Alexandre de Moraes acting as the reporting Justice, in a judgment delivered by that Court’s Full Bench. This is a paradigmatic case in which not only the conduct imputed to the accused is at issue, but also the limits of the exercise of the State’s punitive power in a democratic regime. The subject is all the more sensitive as it lies within the broader context of criminal proceedings linked to the so-called Inquiry No. 4,781, the “Fake News” inquiry, and Inquiry No. 4,874, on “digital militias”, both established as derivative inquiries of an investigative line aimed at confronting attacks against institutions. It is also connected to the specific inquiries into the anti-democratic acts of 8 January 2023, notably Nos. 4,917, 4,918, 4,919, 4,920, 4,921, 4,922 and 4,923/DF, instituted to investigate crimes such as criminal association, incitement to crime, the violent abolition of the Democratic Rule of Law and coup d’état. Not by chance, many of the individuals involved — often conflated with one another — ended up being labelled “coup-plotters”, although countless among them were convicted of different offences. It should be recorded at the outset that, on an academic plane, a critical view of the jurisprudence adopted by the Supreme Federal Court in no way signifies ignoring that institution’s relevance and dignity for Brazilian democracy, nor does it entail disregarding its essential role in preserving the Rule of Law. Quite the contrary: it falls to that very Supreme Federal Court to ensure and guarantee, in Brazil, the freedom to criticise judicial decisions as a legitimate expression of democratic pluralism[1]. The defendant, Joel Muru Chagas Machado, a self-employed professional, was convicted, in a 2024 sitting, in a real concurrence of crimes, of criminal association (Article 288, caput, of the Penal Code) and of inciting animosity between the Armed Forces and the Branches of the Republic (Article 286, sole paragraph, of the Penal Code). The sentence imposed consisted of one (1) year’s imprisonment, substituted by community-based penalties, together with twenty (20) day-fines, each unit being fixed at half the minimum wage in force at the time of the facts. In addition, payment of R$ 5,000,000.00 (five million reais) was set as compensation for collective moral damages, to be fulfilled jointly and severally with the other defendants convicted in criminal cases related to the events of 8 January 2023[2]. The scope of this article is strictly limited to the leading opinion of Justice Alexandre de Moraes, which prevailed as the ground of the conviction before the Full Bench. Thus, it is not my intention to revisit the entire case file or the dissenting opinions, but rather to examine critically the arguments set out in the majority opinion. The analysis seeks to verify whether the conviction of Joel Muru Chagas Machado, as grounded in the reasoning set forth in the judgment assessed herein, is compatible with the constitutional principles of legality, typicity, culpability, subjective criminal liability, and the individualisation of criminal conduct — all enshrined in the 1988 Constitution and consolidated in the Supreme Federal Court’s traditional jurisprudence and in the case law of the Inter-American Court of Human Rights, as will be observed in the course of this work. Moreover, these constitutional principles are intrinsically connected to fundamental rights — human dignity, due process of law (in both its procedural and substantive dimensions), and the offence-based criminal law model — civilisational achievements inherent to the Democratic Rule of Law.   II.        JURISDICTION OF THE SUPREME FEDERAL COURT AND THE FORUM PRIVILEGE Article 102, item I, subparagraph (b), of the 1988 Federal Constitution provides that it falls within the original jurisdiction of the Supreme Federal Court to hear and judge, in common criminal offences, the President of the Republic, the Vice-President, members of the National Congress and other authorities therein listed. This is the so-called forum privilege, an institution which, far from constituting a personal prerogative, serves to protect the office institutionally, ensuring that certain functions of high national relevance are adjudicated by the country’s highest court. It should be noted, however, that although the constitutional text does not restrict the privilege to crimes committed in the exercise of, or in relation to, the office, the Supreme Federal Court, in Criminal Case (Ação Penal) 937 – Question of Order (2018), settled the understanding that forum privilege is limited to offences perpetrated during the tenure of office and related to the office-holder’s official duties. It should further be clarified that individuals without forum privilege may be tried jointly with those who enjoy it, provided that the indictment and, above all, the conviction judgment demonstrate the connection between the crimes imputed to the privileged agent and to the co-defendant who lacks such privilege, pursuant to Supreme Federal Court Súmula (Precedent) 704. In that sense, the institutes of joinder by continence (Article 77 of the Code of Criminal Procedure) and by connection (Article 76 of the Code of Criminal Procedure) must be duly evidenced in the accusatory pleading and in the judicial decision, so as to legitimise the attraction of jurisdiction to the Supreme Federal Court. The Supreme Federal Court itself has already established that the consolidation of proceedings by connection or continence cannot be presumed; concrete evidential grounds are required to demonstrate the nexus between the conducts. Such was the holding, for example, of Justice Joaquim Barbosa in Criminal Case 470, in which 38 defendants were prosecuted for active corruption, passive corruption, embezzlement, money laundering, conspiracy, unlawful remittance of funds abroad and fraudulent management of a financial institution. On that occasion, the Court underscored the understanding crystallised in Súmula 704 of the Supreme Federal Court to the effect that “the attraction, on account of continence or connection, of a co-defendant’s case to the forum privilege of one of the accused does not violate the guarantees of the natural judge, of full defence, or of due process of law.” Likewise, in AP 937 – Question of Order (2018), reported by Justice Luís Roberto Barroso, in which an indictment for passive corruption against a federal parliamentarian was under scrutiny, the Court fixed the following theses: “(i) Forum privilege applies only to crimes committed during the exercise of the office and related to the functions performed; and (ii) after the close of evidential proceedings, with publication of the order summoning the parties to file closing submissions, jurisdiction to hear and judge criminal actions shall no longer be affected by the office-holder coming to assume or to leave office, for whatever reason.” In Criminal Case No. 1,666/DF, Justice Alexandre de Moraes grounded the Supreme Federal Court’s jurisdiction not only on the gravity of the facts associated with the events of 8 January 2023, but also on the evidential connection with investigations already pending before the Court involving authorities possessing forum privilege. In his opinion, the Reporting Justice made express reference, inter alia, to Inquiry No. 4,781/DF (known as the “Fake News Inquiry”), in which federal parliamentarians are investigated for conduct related to the dissemination of hate speech, attacks on institutions and encouragement of anti-democratic acts. In this context, he named authorities with forum privilege, such as: Senator Flávio Bolsonaro; Federal Deputies Otoni de Paula, Cabo Júnior do Amaral, Carla Zambelli, Bia Kicis, Eduardo Bolsonaro, Filipe Barros, Luiz Phillipe de Orleans e Bragança, Guiga Peixoto and Eliéser Girão; as well as other parliamentarians mentioned in related inquiries, such as Carlos Jordy, Cabo Gilberto Silva and Gustavo Gayer. Thus, the Supreme Federal Court deemed that the actions of Joel Muru Chagas Machado, although not himself a holder of forum privilege, were intrinsically connected to the same factual and evidential context of those inquiries. For that reason, the attraction of the Supreme Federal Court’s jurisdiction was justified on the basis of Article 76, items II and III, of the Code of Criminal Procedure, thereby avoiding procedural fragmentation and the possibility of contradictory decisions. Notwithstanding, within the reasoning of the conviction judgment, there is no reference to any co-perpetration between the convicted defendant and parliamentarians or authorities possessing forum privilege, whether as regards the crime of criminal association (Article 288 of the Penal Code) or the crime of inciting animosity between the Armed Forces and the Branches of the Republic (Article 286, sole paragraph, of the Penal Code). Indeed, there is a descriptive lacuna that disconnects the defendant from any link with a privileged authority within the criminal sphere, such that, at the level of the accusatory and condemnatory narratives themselves, the Supreme Federal Court’s jurisdiction is emptied. As regards typicity, the crime of criminal association requires the description of a bond between the defendant and other determined persons, in a specific and concrete manner. Such an association cannot be conceived as an abstract, invisible entity devoid of any identification. To justify the Supreme Federal Court’s jurisdiction, the reasoning of the judgment should have pointed out, expressly, at least one authority with forum privilege as an integral member of the criminal association of which the defendant Joel Muru Chagas Machado was said to be part, as well as demonstrated how the bond between them, and with the other supposed associates, was formed. With respect to the crime of inciting animosity between the Armed Forces and the Branches of the Republic (Article 286, sole paragraph, of the Penal Code), the conviction likewise failed to describe the role of any authority holding forum privilege or that authority’s alleged protagonism as a co-perpetrator with the defendant. Consequently, it is not known whether Joel Muru Chagas Machado was incited by some authority to join the encampment, whether he himself incited the privileged authority to any criminal practice, or whether both acted jointly to incite the Armed Forces to hostility against the constituted Powers. This deficit becomes even more evident when the Supreme Federal Court’s jurisdiction is examined in the light of the institutes of connection and continence. Both are provided for in the Code of Criminal Procedure as hypotheses for consolidating proceedings, but they have distinct grounds: connection (Article 76 of the Code of Criminal Procedure) occurs when two or more offences bear between them an evidential, objective or subjective nexus such that the investigation of one influences that of the other; continence (Article 77 of the Code of Criminal Procedure) is verified when there is a concurrence of persons in the same offence or when several offences result from a single act, requiring joint judgment. The Supreme Federal Court’s case law establishes that consolidation by connection or continence is neither automatic nor presumed. Concrete demonstration in the indictment and in the conviction judgment is required, evidencing a factual or evidential bond that justifies the Court’s jurisdiction, as settled in Súmula 704. In AP 470, Justice Joaquim Barbosa emphasised that attraction of jurisdiction by connection presupposes clear reasoning as to the nexus between the co-defendants’ conduct. Likewise, in AP 937 – Question of Order (2018), reported by Justice Luís Roberto Barroso, the Court delimited that forum privilege is only maintained where there is a direct functional link between the crime and the privileged authority. In this context, it was incumbent upon the conviction judgment in AP No. 1,666/DF to make explicit what evidential connection or continence link would attract the Supreme Federal Court’s jurisdiction. The absence of a clear description on this point undermines the legitimacy of the jurisdiction invoked, for the generic gravity of the facts is insufficient: it is indispensable to demonstrate whether there was a concurrence of agents or evidential interdependence between the defendant and authorities with forum privilege. Furthermore, when one observes the reasoning contained in the opinion of the eminent Reporting Justice, Alexandre de Moraes, no concrete connection is apparent between acts allegedly committed by the defendant and any specific act attributed to the deputies named by the Reporting Justice when justifying the evidential connection — an aspect that is striking. Indeed, in the present case, there is not even an evidential or factual connection between the acts attributed to the convicted defendant and any acts committed by former President of the Republic Jair Bolsonaro — whose forum privilege was likewise recognised by the Supreme Federal Court, as is a matter of public knowledge — or by any other office-holder vested with forum privilege. In this regard, the forum privilege applicable to the accused in Criminal Case No. 1,666 remains without a logical explanation or evidential basis, inasmuch as no link was demonstrated between his conduct and any chain of command involving a figure clothed with forum privilege. It suffices to note that, in the structure of the alleged criminal association that the defendant supposedly joined, no ostensible participation by any person with forum privilege was described; that is, no connection between the defendant and a privileged figure was indicated. Accordingly, at least for the purpose of justifying the Supreme Federal Court’s jurisdiction in the specific hypothesis, the individualisation of conduct in co-perpetration between the defendant and a holder of forum privilege was emptied, such that the principle of the natural judge was impaired, in breach of Article 5, items XXXVII and LIII, of the Federal Constitution, which guarantee that there shall be no exceptional court or judge and that no one shall be prosecuted or sentenced save by the competent authority. III.        THE ASSIGNMENT OF THE “FAKE NEWS” INQUIRY TO JUSTICE ALEXANDRE DE MORAES The reasoning of Justice Alexandre de Moraes in Criminal Case No. 1,666/DF makes express reference to Inquiry No. 4,781/DF, known as the “Fake News Inquiry”, as one of the connecting bases that justify the Supreme Federal Court’s jurisdiction. The Reporting Justice recalls that this inquiry was not allocated by electronic random distribution, as ordinarily occurs in cases within the Court’s original jurisdiction. Its origin stems from a decision by the Presidency of the Supreme Federal Court, then held by Justice Dias Toffoli, who instituted the inquiry ex officio and assigned it to Justice Alexandre de Moraes for rapporteurship. That direct assignment, carried out in 2019, sought to provide a swift response to a set of attacks and false news that, in the Full Bench’s understanding, affected the honour of the Justices and the institution itself. Since then, Inquiry 4,781 has become a hub for investigations into attacks on democratic institutions, serving as the basis for the establishment of other related proceedings, such as Inquiry 4,874/DF (digital militias) and, subsequently, for the connection with the facts of 8 January 2023. By invoking this line of continuity, the Reporting Justice underscored that the Supreme Federal Court’s jurisdiction was already consolidated by the presence of authorities with forum privilege in Inquiry 4,781 and in inquiries connected to it. Thus, the criminal prosecution of individuals without such privilege — like Joel Muru Chagas Machado — would be justified by the attraction of jurisdiction provided for in Article 76, items II and III, of the Code of Criminal Procedure. This point, however, raises significant constitutional and conventional discussions. The absence of random distribution and the direction of the inquiry by the Presidency — albeit subsequently endorsed by a majority of the Full Bench — have been questioned from the standpoint of the principle of the natural judge (Article 5, item LIII, of the 1988 Federal Constitution) and of the case law of the Inter-American Court of Human Rights. IV.        THE INDIVIDUALISATION OF THE DEFENDANT’S CONDUCT In the opinion delivered, Justice Alexandre de Moraes set out the elements which, in his view, demonstrated Joel Muru Chagas Machado’s adherence to the criminal association and to the offence of incitement. The individualisation of the conduct was described along three axes: (i) the confession given in the police sphere, in which the defendant admits having travelled from Santa Maria/RS to Brasília on 8 January 2023, remaining at the encampment until being arrested on 9 January; (ii) the indirect corroboration of that confession by the behaviour of another 529 accused persons, who acknowledged the same conduct and entered into Non-Prosecution Agreements (ANPPs) with the Office of the Prosecutor General; (iii) the use of photographs to demonstrate the organised structure of the encampment in front of the Army Headquarters. It is noteworthy that the judgment does not record any seizure of weapons or illicit objects, the identification of a vehicle used by the defendant, or any signs of recruitment or leadership. The individual proof is restricted to the extra-judicial confession, corroborated by an inference of collective adherence drawn from the context. Such a mode of individualisation opens the way to critical analysis: the Constitution requires individualised criminal imputation (Article 5, items XLV and XLVI), whilst the Inter-American Court of Human Rights reiterates that criminal responsibility must be anchored in concrete acts attributable to the person, and not in collective presumptions. It becomes evident that the judgment was not unanimous. Justice Nunes Marques, in a dissenting opinion, rejected any perspective of strict liability in criminal law and found not only the Supreme Federal Court’s absolute lack of jurisdiction, but also the absence of conduct individualisation capable of supporting any conviction decree against the defendant, summarising his position in the following terms: “It should be noted that the demonstrations carried out by those encamped were quite diverse and heterogeneous, ranging from agendas linked to customs to varied political demands. It cannot be asserted — indeed there is no evidence to that effect — that all members of the encampment, indiscriminately, shared the common purpose of inciting the Armed Forces to depose the constituted government or to bring about the violent abolition of the democratic rule of law. Nor are there material elements of proof pointing to the defendant’s concrete conduct in instigating or encouraging the commission of any crimes.” Further regarding the lack of individualisation of the convicted defendant’s conduct, attention is drawn to the ground employed in the judgment concerning the use of supposed confessions by other members of the same alleged criminal association, such confessions having occurred within Non-Prosecution Agreements. In his opinion, the eminent Justice Alexandre de Moraes stated that at least 529 defendants, in circumstances identical to those of Joel Muru Chagas Machado, admitted co-perpetration and entered into ANPPs with the Prosecutor General’s Office, assuming obligations such as community service, participation in a course on democracy, restrictions on the use of social media, and payment of pecuniary contributions. In other words, the reasoning of the judgment, by alluding to confessions obtained in the context of Non-Prosecution Agreements, proved entirely empty of any individualisation of the conduct imputed to the convicted defendant in Criminal Case No. 1,666. Should such statements have been limited to confirming the defendant’s mere presence at the encampment, without any other element of authorship or participation, they are inoperative for purposes of conviction. Indeed, the defendant denied any criminal practice, admitting only that he had been present at the site. In fact, the Reporting Justice’s opinion did not name the co-defendants who are said to have confessed to unlawful acts in ANPPs, nor did it detail the content of those supposed confessions, rendering it impossible to use such elements to underpin a conviction decree against the accused Joel Muru Chagas Machado. It should further be recorded that it would be inadmissible for the Supreme Federal Court to use confessions taken within a Non-Prosecution Agreement as borrowed evidence to support the conviction of Joel Muru Chagas Machado, inasmuch as confessions obtained for the purpose of an ANPP are not intended for that end. Quite apart from the fact that those co-defendants were not named and that the respective contents of their confessions were not detailed in the conviction decree, such confessions serve solely the limited purpose of the agreement entered into, and not the conviction of third parties, for they do not entail any judicial finding of guilt as to the facts narrated[3]. A question imposes itself: if the mere presence at the encampment were sufficient to characterise a crime, why did the authorities not dissolve it at an earlier stage? And further, why were Federal Police agents not previously embedded within the encampment? If, in truth, the facts were connected with an attempted coup d’état, with the commission of anti-democratic acts, or with the operation of a criminal organisation and digital militias, Law No. 12,850/2013 would have applied, and the criminal investigation could have permitted — long before 8 January 2023 — by court order, the use of undercover agents, interception of communications (wiretapping), and monitoring within the encampment by the Federal Police, with potentially high effectiveness. However, none of this is substantiated in the individualisation of the accused’s conduct and, by all indications, is not even present in the indictments filed against other accused persons in analogous conditions, likewise arrested solely for being encamped in the vicinity of the Supreme Federal Court. Another decontextualised foundation of the judgment under examination refers to an excerpt taken from a different case, namely Criminal Case No. 1,060/DF, adjudicated on 10 May 2023, under the rapporteurship of the eminent Justice Rosa Weber, which the Reporting Justice, Alexandre de Moraes, reproduced to support the conviction of Joel Muru Chagas Machado, whose conduct consisted simply of being present at the encampment on 8 and 9 January 2023. In grounding the conviction, Justice Alexandre de Moraes referred to Justice Rosa Weber’s judgment, in which a conviction was entered against another accused, mentioning the existence of an armed, stable and permanent human grouping, previously coordinated over social networks to commit indeterminate offences, manifested in attacks on Union property, on listed heritage assets, and in an attempt to abolish the Democratic Rule of Law, restricting the operation of the constitutional branches and seeking to depose the lawfully established government. In fact, the reference made in the reasoning to the judgment handed down in Criminal Case No. 1,060/DF, reported by Justice Rosa Weber, proved decontextualised and disconnected from the situation of the accused Joel Muru Chagas Machado, because the individualisation of his conduct reveals no premeditation to attack the institutions of the Democratic Rule of Law, much less indicates coordination over social networks to that end, nor any behaviour aimed at restricting the operation of the constitutional branches or at deposing the lawfully established government. On the contrary, the only conduct attributed to the defendant by the conviction judgment was that of being present at the encampment; from that mere circumstance, his participation in a multitudinous crime was presumed, based on judicial precedents that would never authorise such a presumption for conviction purposes. It cannot be denied that we are facing an absolutely innovative precedent in criminal matters within the Brazilian legal system. There was no investigation, it bears repeating, into any possible modus operandi for recruiting the defendant, his speeches at the encampment, or his subjective interaction with third parties. No weapons were seized from him; nor were his social networks even investigated. If this was the standard model used to underpin convictions — and if such mass convictions replicated this pattern — a serious investigative deficit on the part of the State is established. Nevertheless, it is neither possible nor legally permissible for the Judiciary to remedy such lacunae by abolishing the accused persons’ fundamental rights. Furthermore, Justice Nunes Marques, in his dissent, rightly highlighted the heterogeneity of the encampment, a circumstance recorded, indeed, in indictments brought by the Federal Prosecution Service itself. Note that those indictments narrated that the encampment “already operated like a sort of village, with a place for meals, a market, transport, medical care, [and] a room for puppet theatre.” The manner in which arrests at the encampment were carried out is also worthy of record and was noted by Justice Nunes Marques in his vote, stressing that, on the morning of 9 January 2023, the Military Police merely requested that the encamped gather their belongings and board a bus, without prior notice that they would be arrested, a situation in which all complied with the police authority’s instructions. It is not known, in truth, whether the arrests of those encamped — similarly situated to Joel Muru Chagas — were ordered by a court, supposedly on grounds of in flagrante delicto, and, if so, for which offence. In this perspective, it is worth recalling that both the Supreme Federal Court and the Superior Court of Justice have repeatedly held that the individualisation of conduct is an indispensable requirement for the validity of an accusation and of a conviction in criminal matters. Criminal responsibility, in a Democratic Rule of Law, must always be subjective — never objective — especially in serious offences such as corruption or money laundering. In that sense, the Supreme Federal Court has already acknowledged the ineptitude of generic indictments for lack of concrete description of the conduct attributed to the accused, affirming that mere collective imputation violates the adversarial principle and the right of defence. Along the same lines, the Superior Court of Justice has held that accusatory pleadings that fail to individualise conduct — generically imputing crimes such as corruption or laundering to several defendants — must be quashed for ineptitude. These precedents confirm that it is impermissible to legitimise convictions grounded solely on the accused’s physical presence within a given collective context, absent a minimal factual description of their concrete acts. On the contrary, Brazilian constitutional and infra-constitutional jurisprudence reinforces the requirement of a subjective nexus clearly and individually demonstrated, so as to avoid the application of strict liability in criminal law, expressly repudiated by the Constitution and by the inter-American human rights system. In this vein, the mere generic imputation of crimes, unaccompanied by a minimal description of concrete acts attributable to the accused, does not meet the constitutional and conventional requirements of due process of law. The individualisation of conduct is an indispensable requirement for the validity of criminal prosecution; its absence is cause for ineptitude of the indictment and for nullity of any conviction. The Supreme Federal Court and the Superior Court of Justice have repeatedly affirmed that generic imputations do not allow the full exercise of the right of defence and must therefore be quashed in habeas corpus or related appeals[4]. By admitting convictions based solely on presumptions derived from an accused’s physical presence within a certain collective context, the judgment in Criminal Case No. 1,666/DF adopts a form of strict criminal liability, in blatant violation of the principle of culpability and of the postulate of subjective responsibility — structuring pillars of democratic criminal law.  V.        THE IMPOSSIBILITY OF USING ANPP CONFESSIONS AS EVIDENCE FOR CONVICTION In the conviction entered in AP No. 1,666/DF, Justice Alexandre de Moraes employed, as a reinforcing element, confessions given by co-defendants within Non-Prosecution Agreements (ANPP), to conclude that Joel Muru Chagas Machado was in an analogous situation. Such reasoning, however, finds no support in the jurisprudence of the Supreme Federal Court and of the Superior Court of Justice. The Supreme Federal Court has already established that “the ANPP is exhausted at the pre-procedural stage, especially because the consequence of its refusal, non-approval or breach is the initiation of the phase of offering and receiving the indictment.”[5] In other words, the confession given in that context is not intended to form guilt, but merely to fulfil a formal requirement that enables the agreement’s execution. In the same sense, the Superior Court of Justice has consolidated the understanding that “the extra-judicial assumption of guilt within an ANPP is akin to the content of a confession of the criminal offence before the police or prosecutorial authority, having probative value solely as extra-judicial data, and only being usable to support an indictment in the event of breach of the agreement, leading the Prosecution Service to file charges.”[6] More recently still, the Supreme Federal Court has recognised that “in the ANPP, the confession is not intended for the formation of guilt”[7], reinforcing that its use as evidence for conviction violates due process of law. It appears, therefore, that the function of the confession in an ANPP is not to serve as an evidential element in court, but solely as an extra-judicial, formal requirement for the agreement’s celebration. The case law of the Supreme Federal Court and of the Superior Court of Justice is firm in recognising that this confession is exhausted at the pre-procedural stage, and is not even admissible within the same proceedings as evidence of criminal responsibility. Accordingly, by relying on confessions by co-defendants taken within ANPPs, without concrete individualisation of the conduct of the defendant Joel Muru Chagas Machado, the majority opinion fell into a flagrant contradiction with the consolidated jurisprudence of the Higher Courts, treating a pre-procedural datum as suitable judicial proof. Such a practice results in a distortion of the agreement’s purpose and in a violation of the principle of subjective criminal responsibility[8]. VI.        THE DISTORTION OF THE CONCEPT OF “MULTITUDINOUS CRIME” AND THE MISAPPLICATION OF SUPREME FEDERAL COURT PRECEDENTS In the opinion delivered, Justice Alexandre de Moraes invoked the notion of a multitudinous crime to uphold the conviction, citing precedents from the 1990s (HC 71,899/RJ, HC 73,638/GO and HC 75,868/DF, reported by Justice Maurício Corrêa). Those precedents, however, were limited to admitting a generic indictment in situations involving multitudinous crimes, always conditioning any conviction on an individualised imputation and on the demonstration of concrete proof of the accused’s participation. In Criminal Case No. 1,666/DF, by contrast, that criterion — originally restricted to the admissibility stage — was transposed to the judgment on the merits, such that mere presence at the encampment came to be deemed sufficient to support a conviction. Accordingly, the majority opinion fell into a manifest distortion of the precedents cited, unduly expanding their ratio decidendi and weakening Brazilian criminal dogmatics by admitting criminal liability without individualisation of conduct. VII.        THE DEFICIENCY OF THE INVESTIGATION AND OF THE EVIDENTIAL PHASE The conviction of Joel Muru Chagas Machado resulted from an evident deficit both in the investigation and in the evidential phase. No concrete acts were identified that could be attributed to him as incitement or criminal association. Nor was it ascertained how he entered the encampment, whether there had been any recruitment, associative links, or specific logistics related to his presence at the location. The criminal proceedings did not produce testimony or records capable of proving the defendant’s active participation in the facts narrated. Moreover, the exercise of the right to silence was interpreted in a biased manner, to the defendant’s manifest detriment. Thus, the conviction rested on generic presumptions, in direct affront to the principle of culpability and to the fundamental guarantees of due process of law. VIII.        THE INVESTIGATIVE DEFICIT, THE RISK OF STRICT CRIMINAL LIABILITY, AND THE CORROSIVE EFFECTS OF A PRECEDENT ON DEMOCRACY The absence of consistent investigation into financing, logistics or associative links transformed mere presence at the encampment into sufficient indicia of guilt. This investigative deficit resulted, in practice, in the adoption of a form of strict criminal liability, in direct breach of Article 5, items XLV and XLVI, of the 1988 Federal Constitution, as well as of the consolidated case law in Baena Ricardo et al. v. Panama of the Inter-American Court of Human Rights, which established the need for subjective responsibility and individualisation of conduct as indispensable conditions for the validity of criminal or administrative sanctions[9]. More serious still, this deficient pattern of imputation, according to the Reporting Justice himself, was replicated in 1,557 serial decisions, consolidating a corrosive precedent for democracy by normalising convictions without individualisation of conduct. By legitimising violations of constitutional and conventional guarantees, the precedent compromises the integrity of the justice system, since, in the Reporting Justice’s words, “the SUPREME FEDERAL COURT’s jurisdiction over the criminal actions concerning the extremely serious crimes committed on 8 January was examined and recognised by the Court’s FULL BENCH in 1,557 (one thousand, five hundred and fifty-seven) decisions.” This automatic alignment undermines the coherence of the constitutional process and affects, at the very least, all individuals who were encamped near the Supreme Federal Court — whose number was not even duly ascertained. Note, moreover, that if the encampment were indeed a coup-oriented structure and if those present there were all organised in an associative manner for a premeditated coup d’état, it would be expected that they would already have been on the investigative radar of the Federal Police and of the Federal Prosecution Service, given that the criminal investigation into anti-democratic acts and into the attempted coup d’état was already under way. In that context, it is unclear why, at least at the investigative stage, that group was not brought under Law No. 12,850/2013, which defines criminal organisation and provides for criminal investigation. In such a scenario, the Federal Police and the Federal Prosecution Service could, by court order, have used undercover agents in the encampment, ambient listening devices, interception of communications and other investigative tools apt to individualise each participant’s conduct. In truth, even if a generic indictment without proper individualisation of conduct were admitted on the basis of precedents HC 71,899/RJ, HC 73,638/GO and HC 75,868/DF (reported by Justice Maurício Corrêa), those decisions could never have been used to authorise the conviction of the defendant Joel Muru Chagas Machado. If the same decision-making pattern is being replicated in analogous cases, its urgent review is required—whether by the Supreme Federal Court, by the National Congress, or by the President of the Republic — each within their respective competences, so as to delimit with precision the scope of such cases. IX.        CONCLUSION The analysis of AP 1,666/DF reveals investigative deficits, the adoption of strict criminal liability, and a serious irregularity in the allocation of the case. The assignment of Inquiry 4,781 to Justice Alexandre de Moraes without random distribution violates the principle of the natural judge (Article 5, items XXXVII and LIII, of the 1988 Federal Constitution) and Article 8(1) of the American Convention on Human Rights. This flaw, combined with fragile evidence and the distorted application of the concept of a multitudinous crime, compromised fundamental rights and produced corrosive effects on Brazilian democracy. In view of the serious violations of constitutional and conventional guarantees identified, correction of this state of affairs may proceed along three legitimate institutional avenues. It falls to the Supreme Federal Court, in criminal review proceedings, to examine the validity of convictions rendered in disregard of the requirements of due process of law and of the individualisation of conduct. The National Congress, in turn, holds the political prerogative to deliberate on the granting of amnesty, an institute expressly provided for in Article 48, item VIII, of the Federal Constitution. There is no constitutional prohibition on amnesty for the crimes of criminal association (Article 288 of the Penal Code) and of inciting animosity between the Armed Forces and the Branches of the Republic (Article 286, sole paragraph, of the Penal Code). The Constitution, in Article 5, item XLIII, limits amnesty solely in relation to heinous crimes, torture, illicit drug trafficking and terrorism, which do not apply to the offences at issue. Therefore, convictions that have already become final, as well as Non-Prosecution Agreements entered into by hundreds of persons as a result of the events of 8 January 2023, may be encompassed by a legislative amnesty, extinguishing their penal effects and restoring coherence to the constitutional system. For his part, the President of the Republic is constitutionally empowered to grant pardons and commutation of sentences (Article 84, item XII, of the Federal Constitution). Among the possible modalities, humanitarian pardon stands out, aimed at safeguarding human dignity in the face of disproportionate convictions or in situations of manifest social, personal or procedural fragility. The Supreme Federal Court has already recognised, in precedents such as Direct Action of Unconstitutionality (ADI) No. 5,874/DF (Reporting Justice Alexandre de Moraes), the constitutionality of that measure, affirming the Executive’s broad margin of political discretion. In this context, humanitarian pardon emerges as a legitimate instrument of sovereign clemency, capable of correcting punitive distortions and ensuring that criminal law is not converted into an instrument of oppression. Fábio Medina Osório PhD in Administrative Law from the Complutense University of Madrid. Master’s in Public Law from the Federal University of Rio Grande do Sul. Former Minister-Head of the Office of the Attorney General of the Union (Government of Michel Temer). President of the International Institute for Studies of State Law. Email: [email protected] *published in portal JOTA (9 October 2025)   [1] In the sense of the exercise of academic freedom and of the freedom to criticise judicial decisions, see the following precedents: ADPF 548, Reporting Justice: Cármen Lúcia, Full Bench, judgment on 15-05-2020, ELECTRONIC CASE FILE DJe-142 RELEASED 08-06-2020 PUBLISHED 09-06-2020; ADPF 187, Reporting Justice: Celso de Mello, Full Bench, judgment on 15-06-2011, ELECTRONIC JUDGMENT DJe-102 RELEASED 28-05-2014 PUBLISHED 29-05-2014 RTJ VOL-00228-01 PP-00041; and RE 631053 RG, Reporting Justice: Ricardo Lewandowski, Justice writing for the judgment: Celso de Mello, Full Bench, judgment on 15-06-2012, ELECTRONIC CASE FILE DJe-213 RELEASED 29-10-2014 PUBLISHED 30-10-2014. As to freedom of expression and criticism as upheld by the Supreme Federal Court, see the following precedents: STF – ADPF 130/DF, Reporting Justice: Carlos Britto, Date of Judgment: 30/04/2009, Full Bench, Date of Publication: DJe-208 RELEASED 05-11-2009 PUBLISHED 06-11-2009 EMENT VOL-02381-01 PP-00001; STF – Rcl 65017/AM, Reporting Justice: Dias Toffoli, Date of Judgment: 12/08/2024, Second Panel, Date of Publication: ELECTRONIC CASE FILE DJe-n/a RELEASED 27-08-2024 PUBLISHED 28-08-2024; STF – Rcl 62174/MG, Reporting Justice: Flávio Dino, Date of Judgment: 09/04/2024, First Panel, Date of Publication: ELECTRONIC CASE FILE DJe-n/a RELEASED 22-04-2024 PUBLISHED 23-04-2024; and STF – Rcl 23899/PR, Reporting Justice: Rosa Weber, Date of Judgment: 02/10/2023, Full Bench, Date of Publication: ELECTRONIC CASE FILE DJe-n/a RELEASED 27-10-2023 PUBLISHED 30-10-2023. [2] Note, moreover, that in Criminal Case No. 1,670/DF, in which the defendant Ademir Domingos Pinto da Silva was sentenced to one (1) year’s imprisonment, substituted by community-based penalties, in addition to twenty (20) day-fines and the joint and several fixing of R$ 5,000,000.00 (five million reais) by way of compensation for collective moral damages, for the offences of criminal association (Article 288, caput, of the Penal Code) and inciting animosity of the Armed Forces against the Branches of the Republic (Article 286, sole paragraph, of the Penal Code), there is an analogous description of conduct and of a model of criminal responsibility based on the defendant’s mere presence at the encampment, as detailed in this essay. [3] In this regard, there are relevant precedents of the Supreme Federal Court showing that the Court has reaffirmed that the confession given within the scope of a Non-Prosecution Agreement (ANPP) has a merely formal nature and cannot be used as evidence for conviction, under penalty of violating due process of law and the principle of culpability. See, to that effect, the precedents: STF, HC 218.798/SP, Reporting Justice: Cármen Lúcia, j. 15.8.2022, Single-Justice Decision, DJe 17.8.2022; and STF, RHC 214.146/SP, Reporting Justice: André Mendonça, j. 4.3.2024, Second Panel, DJe 23.4.2024. [4] In that sense, a paradigmatic precedent of the Supreme Federal Court addressed the ineptitude of the indictment and the prohibition of strict criminal liability due to the lack of individualisation of conduct, where the Court, under the rapporteurship of Justice Edson Fachin, examined a case in which the petitioner, a former public servant, was charged with alleged participation in a scheme of corruption and money laundering linked to the so-called Operation Zelotes, without the indictment describing any concrete act of requesting, receiving or concealing an undue advantage. The accusation limited itself to narrating, in generic terms, the existence of a group devoted to committing crimes against the public administration, without pointing to the accused’s individual conduct or subjective elements of authorship and intent. The Supreme Federal Court recognised that such a generic imputation contravenes Article 41 of the Code of Criminal Procedure, due process of law and Article 8(2)(b) of the American Convention on Human Rights, as it does not allow the exercise of the right of defence nor the subsumption of the conduct to the criminal provision. The Court therefore granted the writ to quash the criminal action, reaffirming that criminal liability must be subjective and individualised, never presumed from collective contexts or abstract associations. See the relevant precedent: STF, HC 182.458/DF, Reporting Justice: Edson Fachin, Second Panel, judgment on 27/09/2021, DJe 08/11/2021. [5] STF, HC 218.798/SP, Reporting Justice: Cármen Lúcia, judgment on 15.8.2022, Single-Justice Decision, DJe 17.8.2022. [6] STF, HC 756.907/SP, Reporting Justice: Jorge Mussi, Single-Justice Decision, DJe 19.7.2022. [7] STF, RHC 214.146/SP, Reporting Justice: André Mendonça, judgment on 4.3.2024, Second Panel, DJe 23.4.2024. [8] The Inter-American Court of Human Rights, as is known, prohibits the application of strict liability, not only in the criminal sphere but also within Administrative Sanctioning Law, including in cases involving multitudinous unlawful acts. In the case Baena Ricardo et al. v. Panama (2001), the President of that country ordered the dismissal of several civil servants on the allegation that there was a link between the stoppage of their activities and the movement led by Colonel Eduardo Herrera-Hassan, thereby presuming the workers’ guilt. The Inter-American Court held that such State action, by presuming culpability without formal proceedings and without adequate proof, constituted a form of strict liability in sanctioning matters. It decided, therefore, that the principles of culpability and of due process of law must be observed in all punitive action by the State, even administrative, prohibiting the imputation of liability without demonstration of individual intent or fault. See the case: INTER-AMERICAN COURT OF HUMAN RIGHTS. Baena Ricardo et al. v. Panama. Judgment of 2 February 2001. Series C, No. 72. Available at: https://www.corteidh.or.cr/docs/casos/articulos/Seriec_72_ing.pdf   [9] INTER-AMERICAN COURT OF HUMAN RIGHTS. Baena Ricardo et al. v. Panama. Judgment of 2 February 2001. Series C, No. 72. Available at: https://www.corteidh.or.cr/docs/casos/articulos/Seriec_72_ing.pdf  

The recent enactment of Complementary Law 213/2025 has introduced significant changes to Brazilian Insurance Law, creating new challenges that require careful interpretation and practical application. Beyond the realm of legal hermeneutics, these innovations raise issues that affect regulatory structures, the insurance market, and the protection of citizens. Against this backdrop, Fábio Medina Osório, Founding Partner at Medina Osório Advogados, will take part in the panel “Innovations in Complementary Law 213/2025”, scheduled for 17 October from 16:30 to 18:00, during the X International Congress on Insurance Law of the Brazilian Institute of Insurance Law (IBDS). This year, the Congress will be held in São Paulo, with sessions taking place at two of the city’s most iconic venues – the São Paulo Museum of Art (MASP) and the Theatro Municipal. The event has established itself as one of the leading international forums for debate and reflection in the field of Insurance Law, convening leading academics, practitioners, regulators and representatives of public institutions to discuss the key issues shaping the sector. The X International Congress on Insurance Law – IBDS will take place from 16 to 18 October 2025, consolidating its position as a forum for open, plural and high-level dialogue on the future of Insurance Law in Brazil and beyond.  

Medina Osório Advogados is pleased to record the holding of the 1st Petrobras Seminar on Administrative Sanctioning Law, an initiative of great institutional relevance for strengthening integrity, governance and compliance in Brazil. The event will bring together public authorities, Petrobras executives, judges and leading jurists, consolidating itself as a plural and highly qualified forum for dialogue. The opening panel will feature Petrobras’ President, Magda Maria de Regina Chambriard; the Chair of the Board of Directors, Bruno Moretti; Petrobras’ General Counsel, Wellington Cesar Lima e Silva; the Director of Governance and Compliance, Ricardo Wagner de Araujo; Petrobras’ Chief Inspector General, Edson Leonardo Dalescio Sá Teles; the Chair of the Public Ethics Commission, Manoel Caetano Ferreira Filho; and the Executive Secretary of the Office of the Comptroller General (CGU), Eveline Martins Brito. We are proud to highlight that the opening lecture will be delivered by our founding partner, Fábio Medina Osório, a jurist whose career has consolidated Administrative Sanctioning Law as a scientific and applied field in Brazil. Among the speakers, special mention should be made of the President of IBDA, Cristiana Fortini, and the Vice-President of IDASAN, Alice Voronoff, alongside names such as Judge Rogério Tobias de Carvalho (TRF-2), Luiz Fernando Delazari (Itaipu Binacional), Fernanda Alvares da Rocha (CGU), Antônio Carlos Vasconcellos Nóbrega (Ministry of Finance) and Bruno Espiñeira Lemos (Public Ethics Commission). This seminar reinforces the importance of integrating institutional experience, academic thought and legal practice in addressing the contemporary challenges of public ethics and Administrative Sanctioning Law.

Fábio Medina Osório Partner at Medina Osório Advogados. PhD in Administrative Law from the Complutense University of Madrid, Spain. Master’s in Public Law from the Federal University of Rio Grande do Sul (UFRGS). Former Attorney General of Brazil. President of the International Institute for Studies of State Law (IIEDE). Law No. 14,230 of 25 October 2021 introduced a wide-ranging reform of Law No. 8,429/1992, known as the Administrative Improbity Law. Among the most significant changes are the requirement of specific intent (dolo específico) for the configuration of acts of improbity, the possibility of civil non-prosecution agreements, the redefinition of sanctioning hypotheses and, above all, changes to the regime of limitation periods and statutes of limitations during proceedings (prescrição intercorrente). In response to these changes, the National Association of Members of the Public Prosecutor’s Office (CONAMP) filed Direct Action of Unconstitutionality (ADI) No. 7,236, accompanied by a request for interim relief, alleging that various provisions of the reform violated constitutional principles such as administrative morality, proportionality, legal certainty and the very institutional mission of the Public Prosecutor’s Office. The issue quickly gained prominence before the Federal Supreme Court (STF). On 27 December 2022, Justice Alexandre de Moraes, the rapporteur, partially granted the injunction, ad referendum of the Plenary, suspending provisions of the law relating to prescription. This was followed, on 16 May 2024, by a complementary vote in plenary and, on 23 September 2025, by a new ex officio interim decision, motivated by the alleged imminent risk of mass expiry of actions for improbity. The object of ADI 7,236 fell upon Article 2 of Law No. 14,230/2021, insofar as it amended several provisions of the Administrative Improbity Law. Of these, Article 23, § 5 drew particular attention: it provided that, once the limitation period was interrupted, the deadline would resume at half the original time, that is, only four years. CONAMP argued that this rule was incompatible with the reality of Brazilian civil procedure, in which complex actions take, on average, almost five years to be processed in each instance, which would render accountability for acts of improbity impracticable. The analysis of interim relief in ADI 7,236 reveals three successive moments in which the Supreme Court sought to balance the risks posed by the immediate application of the reform. In the first decision, on 27 December 2022, the rapporteur partially granted the injunction, recognising fumus boni iuris and periculum in mora only in relation to prescription. The provisions dealing with limitation periods and statutes of limitations during proceedings were therefore suspended, while the other requests were denied. On 16 May 2024, Moraes delivered a vote in Plenary declaring the partial nullity, with reduction of text, of Article 23, § 5, in order to exclude the expression that halved the limitation period. The aim was to prevent the eight-year period, after interruption, from being reduced to four. The judgment, however, was suspended by requests for review from Justices Gilmar Mendes and Edson Fachin. Finally, on 23 September 2025, in view of reports that more than eight thousand improbity actions could become time-barred within weeks, the rapporteur ex officio supplemented the interim relief. He reiterated that the regime of prescription during proceedings undermined the effectiveness of the law and once again suspended the validity of the expression that reduced the period. The rapporteur’s decisions were based on some central grounds. The plausibility of the argument that the reduction of the deadline weakened the constitutional protection of probity (Article 37, caput and § 4 of the Constitution) was emphasised. Also highlighted were the concrete risk of the mass extinction of ongoing proceedings, the incompatibility of the reduced period with the complexity of improbity actions — which require extensive evidentiary proceedings and adversarial debate — and the consistency of the measure with STF precedents, such as ARE 843.989-RG, which recognised the imprescriptibility of claims for damages to the Treasury caused by intentional acts. Although correct in identifying the danger of generalised prescription, the interim relief may be criticised for its premature character. The immediate suspension of § 5, since 2022, eliminated the effectiveness of the provision at once, without considering alternatives such as modulating effects on the basis of concrete cases of prescription. An intermediate solution would have allowed at least partial preservation of the legislative intent to expedite proceedings. On the other hand, the complementary measures of 2024 and 2025 show the STF’s attention to the practical realities of the judiciary. Data presented by state Public Prosecutors’ Offices indicated that application of the rule would result in the limitation of thousands of actions. The Court’s action, in this context, illustrates its role as guardian of constitutional effectiveness, adjusting the legal text to bring it into line with the republican principle and administrative morality. Nevertheless, within the scope of interim relief, the injunction granted presents a serious problem, namely that it empties the Plenary of its jurisdictional competence. By granting relief before the lapse of the time required for a possible prescription, the rapporteur in fact prevented the impugned provision from taking effect and emptied the substance of the main action. In this sense, it would have sufficed to grant the injunction one day after the lapse of the statutory deadline and thereafter submit the matter to the scrutiny of the Plenary. The trajectory of ADI 7,236/DF reveals how the Supreme Court progressively intervened, between 2022 and 2025, to set aside the effects of the rules on prescription introduced by Law No. 14,230/2021. The focus was on Article 23, § 5, whose provision for reducing the period, after interruption, could prematurely extinguish thousands of actions for improbity. The strongest argument for intervention lies in the risk of prescription without inertia on the part of the claimant. In lengthy and complex proceedings, the punitive claim could be extinguished even where the Public Prosecutor’s Office or the legitimate public entity had acted diligently, contrary to the very logic of prescription in Brazilian law, which has always been linked to procedural inactivity. Even so, less drastic solutions could have been envisaged, such as making the reduction of the deadline conditional upon proof of the claimant’s inertia, thereby preserving the legislative intent of conferring greater speed on proceedings. The Supreme Court’s monocratic decision, in suspending a legal provision dependent upon the passage of a specific period of time, opens the door to criticism of possible premature interference in the normative framework, since the effectiveness of this provision would still depend upon the occurrence of a factual condition. Ultimately, the interim relief in ADI 7,236 highlights the classic dilemma of constitutional review: protecting administrative probity and ensuring the effectiveness of the accountability system, but at the cost of straining legislative autonomy and the separation of powers. In this context, an injunction cannot be granted in such a way that it empties the very content of the direct action of unconstitutionality, depriving the Plenary of its decision-making competence.

On Wednesday, 24 September, Brazilian jurist and author Fábio Medina Osório will deliver two engagements in sequence: an online opening lecture for the Universidad Nacional de La Pampa in the afternoon, followed by an in‑person closing conference at FGV Direito Rio in the evening. Online Opening Lecture of the Postgraduate Diploma in Ibero-American Disciplinary Law — National University of La Pampa (online) Time: 16:00–17:00 (UTC−3) Platform: Microsoft Teams (downloading the app is recommended for best performance). Join: [Access via Microsoft Teams](https://teams.microsoft.com/l/meetup-join/19%3ameeting_ZWJlNWY4ZWMtNjM1NS00YzI4LTg0YzAtYWUzY2M0MDc3ODZj%40thread.v2/0?context=%7b%22Tid%22%3a%22cf220266-9c62-44d0-b587-798332d696f6%22%2c%22Oid%22%3a%22fa0709a0-a955-468e-8aa9-f69e1aaa82ba%22%7d) Meeting ID: 297 799 653 315 5 Access code: Yw3MR6yk Audience: A focused cohort of approximately 16–17 legal professionals, ranging from first‑qualification practitioners to master’s‑level specialists, active in the Judiciary and Public Administration, with many serving as disciplinary investigators. Format: Open class; invitees with the link will be admitted to the session.   Closing Conference of the course “Administrative Improbity” — FGV Direito Rio (Botafogo Campus) Time: 19:00–22:00 (BRT / UTC−3) — in person Host: Professor Thaís Marçal Venue: FGV Direito Rio — Unidade Botafogo, Rio de Janeiro Drawing on a focused thematic cut of Medina Osório’s classic treatise Teoria da Improbidade Administrativa, the conference will revisit foundational concepts, recent jurisprudence and practical implications for integrity, compliance and public‑sector accountability.   Timetable (24 September, chronological) 16:00–17:00 (UTC−3) — Online Opening Lecture of the Postgraduate Diploma in Ibero-American Disciplinary Law — National University of La Pampa (Microsoft Teams). 19:00–22:00 (BRT / UTC−3) — Closing Conference of the course “Administrative Improbity” — FGV Direito Rio (Botafogo Campus), in-person.   About Fábio Medina Osório Partner at Medina Osório Advogados. PhD in Administrative Law from the Complutense University of Madrid, Spain. Master’s in Public Law from the Federal University of Rio Grande do Sul (UFRGS). Former Attorney General of Brazil. President of the International Institute for Studies of State Law (IIEDE).

On 18 September 2025, Fábio Medina Osório will take part in the First Seminar on Administrative Sanctioning Law, organised by the Higher School of the Office of the Attorney General of the Union (ESAGU), in Brasília/DF. The event will also be broadcast live on ESAGU’s official YouTube channel. The programme will feature leading authorities and experts, with Medina Osório contributing at two key moments: Opening Session | 9:00 – 9:30 Opening Lecture | 10:15 – 11:15 Theme: “Constitutional Principles of Administrative Sanctioning Law” The seminar, convened by ESAGU, will bring together jurists and members of the Public Advocacy to discuss the foundations, principles and contemporary challenges of Administrative Sanctioning Law. Medina Osório expresses his gratitude to the Attorney General of the Union, Minister Jorge Messias, and to the Director of ESAGU, João Carlos Souto, for the invitation to speak. He also commends them for organising a seminar of such strategic importance for the advancement of this field in Brazil. Event Details: Date: 18 September 2025, 9:00 – 18:00 Venue: Auditorium of the Higher School of the AGU, Brasília/DF Live Broadcast: ESAGU YouTube Channel – www.youtube.com/watch?v=6dyNXXpYGyY

Partner at Medina Osório Advogados. PhD in Administrative Law from the Complutense University of Madrid, Spain. Master’s in Public Law from the Federal University of Rio Grande do Sul (UFRGS). Former Attorney General of Brazil. Chair of the Special Commission on Administrative Sanctioning Law at the Brazilian Bar Association (OAB). President of the International Institute for Studies of State Law (IIEDE). When accountability fails where it should prevail, the system once again asks whose side the law is on. In 2009, the lawyer Sergei Magnitsky exposed a fraud scheme and died in state custody in Russia. No effective domestic response followed; nor did international mechanisms offer a real remedy. In 2012, the United States Congress enacted an initial act focused on the Russian case; in 2016, faced with the repetition of this pattern of impunity, it broadened the scope and established a general regime: the Global Magnitsky Human Rights Accountability Act. Within US jurisdiction, the Act authorises personal sanctions—asset freezes and visa restrictions—against foreign individuals and entities for significant corruption or serious human rights abuses. In practice, the machinery is administrative: the Department of State and the Department of the Treasury/OFAC conduct designations, and since 2017 Executive Order 13818 (issued under the IEEPA) has structured the regime’s day-to-day operation and listings on the Specially Designated Nationals and Blocked Persons (SDN) List. This is not an international instrument; its effects cross borders by virtue of the dollar’s weight, correspondent-banking networks, and US-regulated technology infrastructure. One should not, however, attribute the Act’s transnational efficacy solely to the dollar’s gravitational pull. The role of the SWIFT system—the backbone of international financial messaging—must also be considered. Although headquartered in Belgium, SWIFT is, in practice, subject to regulatory and political pressures exerted by Washington and Brussels, effectively making it a technical arm of sanctions. The experience of sanctions on Iran showed that exclusion from this network amounts to a form of de facto economic interdiction, cutting off access to global trade flows. Thus, even though the Magnitsky text does not expressly mention it, the Act’s reach is projected over this ecosystem because financial institutions, wary of retaliation, adjust their conduct in advance so as not to jeopardise their continued presence in such a vital network. The legal design is straightforward—and therefore effective. Designation triggers the blocking of assets within US reach, a prohibition on transactions with “U.S. persons”, and restrictions on mobility. The typical targets are non-US nationals—public officials, corporate leaders, organisations. As a large share of global operations settle in USD or touch systems governed by US rules, banks and companies in other countries adapt their behaviour to preserve access to the dollar system and the US market; wherever there is a US nexus (USD settlement, the involvement of a “U.S. person”, or the facilitation of a breach), non-compliance exposes actors to significant fines and, in commercial-regulatory terms, to the risk that dollar correspondents will be lost at counterparties’ discretion (de-risking). On the immigration front, visa restrictions may also be imposed under a parallel statutory basis (§ 7031(c) of the Department of State appropriations acts). Another salient point lies in the limits of judicial control over such designations. Although there is a formal possibility of recourse to US courts, experience shows that the D.C. Circuit adopts a posture of marked deference to the Executive, especially when national security and foreign policy are invoked. The result is a narrow scope for judicial review, in which substantive challenges to sanctions rarely succeed. In this setting, the administrative route of delisting before OFAC becomes, in practice, the only realistic hope of reversal—underscoring the asymmetry between the magnitude of the effects and the scarcity of effective procedural safeguards. It should be emphasised that breaches of Global Magnitsky designations are not confined to commercial repercussions. Under the International Emergency Economic Powers Act (IEEPA), US law provides for administrative and criminal penalties against financial institutions that, even through negligence, facilitate prohibited transactions. Multibillion-dollar fines have been imposed in analogous cases, hitting global banks that violated embargoes on sanctioned countries. Beyond monetary penalties, the greater risk is exclusion from the US market—the core of the international financial system. That scenario turns legal risk into existential risk: a bank unable to access the dollar system will struggle to survive. Liability is not limited to deliberate conduct. The sanctions regime admits attribution for “facilitation”, an open-textured concept encompassing any act that makes it possible, even indirectly, to carry out transactions with designated parties. Thus, the simple settlement of an operation that passes through a US institution, or the use of technology hosted on servers in the United States, may suffice to trigger the law’s application. This interpretive elasticity greatly expands the exposure of foreign financial institutions, which often do not perceive the hidden links that render their transactions reachable by OFAC’s extraterritorial arm. We should be clear about what is at stake. Magnitsky does not export a universal concept of human rights; it enacts, in domestic law, the United States’ legal and political interpretation of “serious violations” and “significant corruption”, and projects that reading through its economic and technological power. The same instrument that protects rights also operates as a lever of foreign policy—indeed, of legal hegemony. Law and power march together; recognising this refines—rather than weakens—the debate. The model has not been confined to Washington. Other jurisdictions have adopted their own regimes—Canada (2017), with the Justice for Victims of Corrupt Foreign Officials Act, and the European Union (2020), with its global human rights sanctions regime (Council Decision (CFSP) 2020/1999 and Regulation (EU) 2020/1998). The common denominator is targeted, name-specific sanctions—focused on natural and legal persons, not countries—with asset and mobility consequences that become effective because the world largely operates on infrastructure connected to the US. Real risks exist: political selectivity in the choice of targets, opaque criteria, and the erosion of procedural safeguards. The regime’s legitimacy depends on public and verifiable criteria, due administrative process with effective avenues of challenge (including delisting petitions to OFAC and, where applicable, judicial review under the Administrative Procedure Act (APA)), and independent institutional oversight. Without that, sanctions become a shortcut to arbitrariness; with it, the message is unambiguous: serious violations carry concrete consequences, within the bounds of legality. The debate that matters in Brazil is not outsourcing parameters to foreign jurisdictions, but strengthening our own. The Constitution enshrines the primacy of human rights in international relations (Article 4(II) of the Brazilian Federal Constitution). To discuss an analogous regime—with objective criteria, publicity of decisions, and opportunities for defence and review—is to discuss coherence between what is written and what is delivered. In an environment where finance, technology and compliance produce de facto transnational reach, sovereignty is also exercised through clear, stable and predictable rules. Thus, legal risks for financial institutions are not confined to regulatory compliance; they extend to institutional viability itself. Magnitsky sanctions have become a driver for the reorganisation of global banking conduct, forcing foreign institutions to choose between fidelity to their domestic legal order and pragmatic adherence to US norms. The room for neutrality is ever narrower: when in doubt, banks opt for over-compliance, abandoning legitimate clients and operations to preserve access to the international financial system. Here, law blends with power—and legal risk takes on the features of systemic risk. The Magnitsky Act achieved global reach not because it is “the law of the world”, but because a significant part of the world operates on US-centred infrastructure. Acknowledging this dual nature—humanitarian and geopolitical—does not relieve us of the need to choose parameters; it compels us to demand criteria, safeguards and institutional responsibility in the application of any regime. Where there is a serious violation, there should be a sanction—with clear rules, oversight and a commitment to legality—so that justice and power are not conflated. More broadly, in the global arena, no nation is beyond accountability to others; international relations imply transparency, reciprocity and a ban on arbitrariness by public authorities. To some extent, although there is neither a truly universal conception of human rights nor even a universal concept of corruption—and while there is no doubt about US global hegemony and China’s rise—it is impossible to ignore the growing importance of international public opinion and of certain ethical standards of integrity demanded in the observance of human rights by contemporary civilised nations. In this context, given countries’ economic, technological and commercial interdependence, the concept of sovereignty has become ever more complex and exposed to international politics and diplomacy. It is precisely in this new environment that legislation with transnational effects, enacted by sovereign powers, emerges and strengthens. Finally, it should be noted that Brazilian financial institutions occupy a structurally vulnerable position amid the conflict between national jurisdiction and the extraterritorial authority of the Office of Foreign Assets Control (OFAC). Domestically, the recognition (homologação) of foreign decisions by the Superior Court of Justice (STJ) is a constitutionally indispensable requirement for property sanctions to take effect against individuals and companies located in Brazil. In the US legal system, however, OFAC—an agency subordinate to the Department of the Treasury and, ultimately, to the President—is not legally obliged to recognise or await that recognition procedure. OFAC’s structure empowers it to administer, supervise and impose financial sanctions immediately under the Global Magnitsky Act, applying them to all institutions that maintain direct or indirect links with the dollar financial system. This means that, even if Brazilian banks invoke a pending analysis before the STJ, OFAC has full discretion to accept or reject that justification—either treating it as a sign of respect for domestic due process or, conversely, as an unacceptable obstacle to the extraterritorial effectiveness of US law. To this equation one must add the spectre of so-called secondary sanctions, through which the Treasury threatens or restricts foreign banks and companies that, directly or indirectly, facilitate transactions for the benefit of designated parties. This is not just a loss of correspondents; it is the concrete possibility of exclusion from dollar payment networks and isolation from the international financial system. The mechanism operates as an indirect instrument of foreign policy, projecting onto third countries the need to conform to US directives on pain of economic marginalisation. The impact, for jurisdictions such as Brazil, is compulsory insertion into a zone of permanent tension between fidelity to the internal constitutional order and practical submission to the functional extraterritoriality imposed by OFAC. The gravity of the situation is heightened by the possibility of class actions in US courts. There are precedents in which victims of human rights violations have sought to hold banks liable for alleged complicity in indirectly financing sanctioned regimes. Even if such claims face evidential hurdles, the mere reputational and financial cost of litigating in US federal courts is a powerful deterrent. The logic is clear: non-compliance—or even the appearance of complacency—with designated parties can open flanks for complex litigation, compounding already severe administrative sanctions. This is, therefore, a field of tension between Brazilian constitutional sovereignty and the United States’ economic-normative power, in which banks are exposed to severe risks of secondary sanctions should OFAC choose not to recognise the authority of the Brazilian judiciary. Fábio Medina Osório

 Consolidating the pact between technology, education, and transparency is urgent; the State cannot hide within its own data. An analysis of the consolidation of precedent theory in Brazil, considering the innovations introduced by the 2015 Code of Civil Procedure (CPC), reveals a significant moment in the quest for predictability and rationality within the judicial system. Since this milestone, judicial decisions have gained binding force, becoming fundamental references for both administrative bodies and the courts. This not only implies institutional deference but also demands a robust organisational structure, firmly anchored in memory and transparency. The challenge ahead extends beyond the legal field, encompassing structural aspects. The effectiveness of the precedent system requires the State, across its various spheres and bodies, to establish legal databases capable of storing, classifying, interpreting, and interconnecting a broad array of decisions, agreements, and normative expressions. This necessity is not confined to the Judiciary alone; it equally involves regulatory agencies, audit courts, the Public Prosecutor’s Office, and administrative bodies responsible for decisions of legal significance. However, it is crucial to recognise that the administrative sphere represents the weakest link in Brazil’s institutional chain. Despite significant initiatives within the Brazilian Judiciary, the reality demonstrates that the vast majority of public institutions still lack databases that are structured, auditable, and semantically organised. Consequently, administrative decisions, disciplinary proceedings, judicial and extrajudicial agreements, as well as contracts and the entire universe of disciplinary and sanctioning jurisprudence, remain scattered and fragmented, hindering access to institutional memory, which should guide the State’s actions. In this context, the role of algorithms is fundamental. Currently, organising precedents depends on systems using legal, semantic, and statistical parameters. Implementing algorithms to categorise them requires a solid normative basis, technical curation, and a data structure that can be audited. Without these prerequisites, there is a risk that repetition will prevail over coherence, making automation a threat to the very essence of judicial reasoning. The scope of statistics must be understood in the context of AI’s impact. Statistics can be classified by different parameters. For reference, one may speak of inferential, predictive, diagnostic, multivariate, frequentist, Bayesian, non-parametric, jurimetrics, forensic, social, political, educational, descriptive, explanatory, high-dimensional statistics, and multiple variations, according to the discipline applied—such as biostatistics, psychometrics, computational statistics, and so forth. In other words, legal databases also serve statistical research, integrated with AI, to derive developments in various other areas and public policies. It is known that normative decisions impact the economy and public policies across numerous other spheres of society as a whole. In this regard, the interpretation of law is necessarily transdisciplinary and is not limited merely to the economic analysis of law. Organising precedents, therefore, ensures the right to understanding (the right to understand public decisions arises from fundamental rights enshrined in Articles 37 (head), 51 (item 14), 5 (item 60), and 1 (item 3) of the Constitution). Each individual, whether a natural or legal person, has the right to understand the criteria underpinning the public decisions affecting them. This fundamental right to comprehension is intrinsically linked to transparency, traceability, and institutional legitimacy and is realised only when decisions are intelligible, auditable, and consistent with consolidated jurisprudence. Without well-structured legal databases, there are no real precedents—only a disordered accumulation of decisions. And where accumulation exists, noise, inequalities, and arbitrariness arise, compromising justice and the system’s effectiveness. A structured legal database functions as a digital platform capable of storing, classifying, and correlating administrative and judicial decisions, norms, agreements, and regulatory documents. This organisation must follow clearly defined legal criteria, with rigorous classifications ensuring traceability and version control. Beyond mere preservation, the database must guarantee institutional coherence, facilitate intelligent searches, consistent interpretations, and decisions aligned with the historical jurisprudence of institutions and precedent systems. In this context, legal databases constitute genuine living ecosystems, continually fed by normative and decisional indexing based on algorithmic logics, metadata, discursive hierarchies, and pre-established patterns. Contemporary statistics, in its multiple facets, performs critical roles, offering causal and algorithmic effectiveness with profound impacts on the institutional interpretation of mapped and indexed norms and decisions. One cannot overlook that statistical functions, integrated within databases, facilitate numerous functionalities in comprehending how certain decisions consolidate into normative standards and their subsequent societal consequences and impacts, including deviations, dysfunctions, underlying hermeneutic currents, and numerous subjective or objective pathologies inherent to decision-making or algorithmic phenomena. AI, in turn, operates in conjunction with contemporary statistics to facilitate advanced, rapid analyses derived from massive datasets. AI also plays varied roles based fundamentally on statistics, though its functions are distinct and integrated within this domain, provided they maintain auditable and rationally traceable premises. Technology, at this juncture, will deeply impact classification models based on the language of precedents, argumentative similarities, prevailing legal grounds, recognition of argumentative and normative patterns within decisions, detection of frequent contradictions, inconsistencies, essential coherences, predictive models, and a vast series of patterns aimed at ensuring predictability, legal certainty, and efficiency within the normative system. In an era of transparency and complexity, the right to understand public decisions emerges as a fundamental right derived from the principle prohibiting arbitrariness by public powers, inherent in the substantial due legal process (Article 5, item 54, of the Brazilian Constitution). Publishing decisions in official gazettes is insufficient, as these instruments do not allow substantial access to transparency regarding the full set of decisions that constitute the norms embodied in precedents. On the other hand, judicial databases are also inadequate, as they do not ensure interconnection with other branches of government nor the effective efficacy of precedents throughout the Brazilian State. Furthermore, the formation of precedents itself demands cultural strengthening among public and private actors in decision-making processes, involving deeper transformations in Brazilian education and research on jurisprudential production as a whole. Thus, it is urgent for legal education institutions, judicial academies, Public Prosecutor’s Office training programmes, Public Defenders’ offices, law firms, and education overall, as well as the Ministry of Education itself, to integrate precedent theory as a central curricular vector—indeed as a standalone discipline rather than an appendix to Civil Procedure Law. Brazil must abandon fragmentary interpretation and cultivate a legal culture rooted in institutional memory, argumentative coherence, and collective responsibility. To achieve this, AI must be incorporated into legal curricula, not merely as a technological novelty but as a tool promoting the rational organisation of law, grounded in ethical, epistemological, and normative principles, acting as an aid to human intelligence and ensuring auditability. Precedent theory must not only be applied but taught, debated, and systematised. To consolidate it, material improvements alone are insufficient: a cultural transformation is required. Structured legal databases must move beyond governmental tools to become platforms for teaching, research, and critical reconstruction of decision-making practices. Recognising the right to comprehensible information allows the country to develop a robust, ethical, and inclusive public transparency policy. This construction demands more than adopting new technologies; it requires curation, training, and a genuine willingness to listen and reflect. Without this awareness, precedents become empty, decisions become isolated, and access to justice becomes an opaque normative labyrinth. Consolidating the pact between technology, education, and transparency is urgent. The State cannot hide within its own data; it must organise, explain, and share them—that is the essence of institutional legitimacy in the 21st century. In this sense, it is crucial to acknowledge that access to justice begins with access to the logic of decisions—comprehensible only when organised in public, coherent, and accessible databases, and taught from the outset. Promoting a culture of precedents thus becomes a public policy aimed at institutional integrity. Without this foundation, rights remain unattainable and justice incomprehensible.

Rio de Janeiro, 27 August 2025 – The Sylvio Capanema Chamber at the Escola Superior de Advocacia of the Brazilian Bar Association (OABRJ) will stage a high-level forum, “The Contemporary Landscape of Administrative Misconduct Law”, convening some of Brazil’s leading jurists and practitioners to discuss the evolving contours of one of the most pivotal areas of public law. Opening Keynote – Fábio Medina Osório The conference will open with a keynote address from Fábio Medina Osório, founding partner of Medina Osório Advogados, Doctor of Administrative Law (Complutense University of Madrid), former Attorney General of Brazil, and current Chair of the Special Commission on Administrative Sanctioning Law at the Federal Council of the Brazilian Bar Association. Dr Medina Osório will trace the dogmatic and institutional evolution of administrative misconduct law, focusing on the delicate balance between ensuring accountability for misconduct and safeguarding fundamental rights and constitutional guarantees. Special Lecture – Vanessa Cerqueira Reis The programme continues with a special lecture from Vanessa Cerqueira Reis, partner at Medina Osório Advogados, State Attorney of Rio de Janeiro, and Vice-Chair of the Administrative Sanctioning Law Commission of the OABRJ. Her talk, “Contemporary Debates on Administrative Misconduct”, will deliver a critical analysis of the legislative and jurisprudential shifts brought by Law No. 14,230/2021, which redefined liability regimes for both public officials and private entities, reshaping Brazil’s legal and institutional landscape. A forum for institutional dialogue and democratic values Far from being a purely academic exercise, the event is positioned as a strategic forum for reflection, dialogue, and institutional strengthening. It underscores the role of law in consolidating democratic principles, reinforcing the rule of law, and promoting legal certainty—elements essential to transparent governance. The organisers highlight: “Our aim is to cultivate a collective dialogue that aligns integrity in public administration with the protection of individual rights.” ⸻ Why this event matters Relevance to practitioners: Offers critical updates on the interpretation of Law No. 14,230/2021. Thought leadership: Showcases insights from two of Brazil’s foremost authorities in administrative sanctioning law. Institutional significance: Hosted by OABRJ, reinforcing the Bar’s role in shaping the future of public law. ⸻ Press & Media Enquiries: Communications Office, Medina Osório Advogados www.medinaosorio.com.br  

This article undertakes a broad analysis of the Federative Republic of Brazil’s strategic role in the global scenario of niobium production and trade.  Using an interdisciplinary approach, it examines the geological, industrial, economic, legal, and geopolitical aspects that position the country as a virtually exclusive participant in the global supply chain for this critical metal. Brazil holds approximately 98 per cent of known niobium reserves and accounts for over 90 per cent of globally traded production, conferring a uniquely powerful position in the 21st century. This centrality is particularly evident in sensitive sectors such as defence, infrastructure, energy, semiconductors, emerging technologies, and the energy transition. It should be noted that this geological and commercial advantage has not yet translated into effective sovereign power. The absence of a structured, integrated, and strategic national policy for the sector reveals legal and institutional vulnerabilities, including the lack of a specific regulatory framework, selective fiscal incentives, and interministerial coordination. Present governance is marked by fragmentation and the predominance of private interests, lacking coordination between industrial policy, economic diplomacy, and technological value addition. Consequently, the article proposes the creation of a new legal and economic regime for niobium, encompassing a dedicated legislative framework, industrial and fiscal policy mechanisms aimed at vertical integration, proactive mineral diplomacy, and the establishment of a public authority endowed with the technical expertise and legitimacy to coordinate national governance of this resource. In light of this context, niobium is treated not only as a commodity, but as a strategic asset for sovereignty, innovation, and geopolitical integration, particularly in an international environment marked by industrial reconfigurations, trade tensions, and disputes over critical minerals. Brazil’s central role in this new global landscape requires institutional intelligence and long-term strategic planning. Introduction The geoeconomic landscape of the 21st century has been strongly shaped by the rise of so-called strategic or critical minerals—essential inputs for the functioning of high-technology production chains, national security, the energy transition, and scientific innovation. In this framework, niobium emerges as one of the most relevant, albeit underestimated, metals in the new global material order. It is a chemical element with atomic number 41, belonging to the group of transition metals, with distinctive physicochemical properties: corrosion resistance, lightness, high thermal conductivity, and superconductivity at cryogenic temperatures. Its applications are varied and structural: from the aerospace and nuclear industries to advanced civil construction; from the production of superalloys for turbines, rockets, and pipelines to cutting-edge defence systems; and from industrial infrastructure to diagnostic imaging, such as magnetic resonance devices. Niobium—often described as the “invisible element”—is an indispensable component for sustaining the complexity of the contemporary economy[1]. What makes the geopolitics of this metal unique is Brazil’s near-monopoly position. As evidenced by updated data from the United States Geological Survey (USGS, 2025[2]) and Brazil’s National Mining Agency (ANM[3]), the country holds a significant proportion of the world’s known reserves and the largest effective annual global production. No other country exercises a comparable degree of control over a mineral resource of similar strategic value. The principal production hubs are located in the States of Minas Gerais (Araxá), Goiás (Catalão and Ouvidor), and Amazonas (São Gabriel da Cachoeira), with most production carried out by two major companies: CBMM—Companhia Brasileira de Metalurgia e Mineração (Brazilian Metallurgy and Mining Company)—and CMOC Brasil, a subsidiary of China Molybdenum Co. Ltd.[4]. At the same time, the United States of America, the European Union, the People’s Republic of China, Japan, and the Republic of Korea are highly dependent on Brazilian exports, lacking significant domestic production and fully functional alternatives. The United States Department of Defense has classified niobium as a critical mineral for national security, and documents released by WikiLeaks in 2010 revealed the inclusion of Brazilian mines on United States lists of global strategic infrastructure[5]. In light of this context, a central question arises: how has Brazil leveraged—or neglected to leverage—this geological and strategic advantage? This article seeks to answer that question based on an interdisciplinary analysis combining geological, industrial, economic, and legal perspectives. The proposed hypothesis is that Brazil occupies a central and privileged position in the new geopolitics of critical minerals, yet still lacks a robust state policy capable of articulating mineral sovereignty, value addition, technological innovation, and global resource diplomacy. Technical Overview and Industrial Applications of Niobium Niobium is a transition metal belonging to Group VB of the Periodic Table, with the chemical symbol Nb, atomic number 41, atomic mass of 92.91 u, and a melting point of approximately 2,468 °C. Its physical and chemical behaviour is characterised by high thermal resistance, ductility, good electrical conductivity, and excellent corrosion resistance, making it suitable for a wide range of industrial applications. From its identification by Charles Hatchett in 1801 to its consolidation as a critical element in the 21st century, niobium has evolved from a rare metal to a vital component of contemporary technological advancement. The principal commercial forms of niobium are diverse and serve different industrial sectors. The predominant form is ferroniobium (FeNb), an alloy of iron and niobium, which accounts for over 90 per cent of global demand and is widely used in the steel industry for the production of high-strength steels. Another relevant form is niobium oxide (Nb₂O₅), which has significant applications in the manufacture of advanced ceramics and precision optical devices. In addition, there are special alloys — such as nickel–niobium, aluminium–niobium, and titanium–niobium — which are used directly in strategic sectors, particularly the aerospace and defence industries, owing to their mechanical strength and thermal stability[6]. Furthermore, niobium plays a strategic role in several industrial sectors, particularly in the steel, aerospace, defence, energy, electronics, medical, and green technology industries. In the steel industry, its most widespread application is in the manufacture of high-strength, low-alloy microalloyed steels, known as HSLA (High Strength Low Alloy). The addition of small amounts of niobium — a process known as microalloying — provides substantial improvements in steel performance: increased mechanical strength, improved weldability, reduced weight in metal structures, and savings in material and energy[7]. These steels are widely used in the automotive industry, particularly in the production of lightweight yet safe vehicle bodies; in civil construction and major infrastructure projects, such as bridges, pipelines, and offshore platforms; as well as in the naval and railway industries[8]. In the aerospace and defence sector, niobium is essential for the formulation of superalloys used in jet engine turbines, rocket thermal coatings, and structural components of satellites and spacecraft. Alloys such as niobium–titanium (Nb–Ti) and niobium–tin (Nb₃Sn) are employed in the manufacture of superconducting magnets for radar systems, medical equipment, and particle accelerators[9]. In the energy and electronics sectors, niobium’s physical and chemical properties make it valuable for a range of applications. It is used in components of nuclear reactors due to its low neutron absorption cross-section, and in superconducting cables for high-voltage transmission systems and nuclear fusion projects such as ITER[10]. In medicine, niobium has been widely used for manufacturing orthopaedic and dental implants, cardiovascular stents, and high-precision surgical instruments[11]. Finally, in the so-called green technologies sector, niobium has gained prominence alongside the advance of renewable energy and the electrification of mobility. It is incorporated into wind turbines through high-strength alloys, into solid-state batteries, and into conductors for electric motors requiring greater thermal efficiency and durability[12]. Although most of Brazil’s production is exported as ferroniobium, there is growing demand for higher-value products, including special alloys customised for particular sectors; niobium-doped ceramic compounds; and niobium components for chips and three-dimensional metallic microstructures. CBMM, a global leader in the niobium products market, invests heavily in applied research aimed at developing new industrial uses for the element, focusing particularly on emerging technologies such as lithium-ion batteries containing niobium oxides. These investments include strategic partnerships with automotive companies, universities, and internationally renowned research centres, notably in Japan, Germany, China, and the United States[13]. However, such initiatives do not yet amount to a national public policy for mineral innovation. The absence of tax incentives, dedicated federal technology centres, and strategic regulation limits Brazil’s progress in transforming niobium into an industrial asset. Global Production and Market Control Global niobium production is characterised by a geological and industrial concentration unparalleled among today’s strategic minerals. Unlike other critical commodities — such as lithium, rare earth elements, and cobalt — which have multiple extraction sites across the globe, niobium is, in essence, monopolised by the Federative Republic of Brazil. According to data from the Serviço Geológico do Brasil (SGB – Geological Service of Brazil) and the United States Geological Survey (USGS), the country holds over 90 per cent of known reserves and accounts for approximately 90 per cent of annual global production. This dominant position is underpinned by three principal mining hubs within Brazilian territory: Araxá, in the State of Minas Gerais, operated by the Companhia Brasileira de Metalurgia e Mineração (CBMM), which alone is responsible for more than 75 per cent of global production[14]; Catalão, in the State of Goiás, operated by CMOC International Brasil; and São Gabriel da Cachoeira, in the State of Amazonas, where significant geological potential remains either in the exploratory phase or under legal restriction due to its location within Indigenous lands. Among these, the Araxá industrial complex is regarded as the most advanced in the world in terms of niobium extraction, processing, and metallurgical transformation technology. Beyond Brazil, the only other relevant operations, albeit on a smaller scale, are in Canada — through the Niobec mine in the province of Quebec[15] — and in certain Central African countries such as Rwanda, the Democratic Republic of the Congo, and Nigeria. In these African states, niobium extraction occurs marginally, with little industrialisation and, in many cases, links to informal practices or unstable political contexts. However, none of these territories possesses reserves comparable in volume or quality to those of Brazil, nor do they possess the technological capacity or logistical infrastructure to rival Brazil’s production centre. In the United States of America, the Elk Creek Project in Nebraska is considered the sole domestic initiative with significant supply potential[16]. Nevertheless, it remains in the pre-operational stage, facing considerable environmental obstacles — such as the high cost of treating brackish groundwater — and requiring substantial financing to achieve large-scale economic viability[17]. The global niobium market is therefore not only geologically centralised but also technologically oligopolistic. CBMM — controlled by private Brazilian capital, with minority stakes held by Japanese and Chinese companies — dominates the global supply chain, acting as the near-exclusive supplier of ferroniobium to steelworks in Europe, North America, and Asia. It operates under a private contractual regime, without public international quotations and outside the scope of commodity exchanges, meaning that niobium prices are established by long-term bilateral agreements, with limited transparency and no international regulatory oversight. This structure confers upon Brazil a rare power in the geopolitics of critical minerals. No other nation exerts such market control with so little international competition over a resource considered indispensable for high-technology, infrastructure, and defence sectors. Paradoxically, however, this privileged position coexists with the absence of a specific national regulatory framework, the domestic deindustrialisation of the value chain, and export patterns concentrated in low-processing products, such as ferroniobium metal. At the same time, this market structure generates latent international tensions. The United States, for instance, has no domestic niobium production and imports 100 per cent of its consumption — the vast majority sourced directly from Brazil. This absolute dependence has been formally acknowledged by agencies such as the Department of the Interior, which placed niobium on its official list of critical minerals owing to its economic and strategic importance. The Department of Defense, for its part, recognises the use of niobium across various applications in the military sector, although, as of the 2021 fiscal year, it had not included the mineral in active acquisition or stockpiling programmes via the Defense Logistics Agency. The absence of reliable and substantial alternative suppliers or buffer stocks in the Northern Hemisphere renders Brazil a pivotal actor in the stability of the production chains for metal alloys and superconductors[18]. From a geopolitical standpoint, Brazil has yet to fully internalise the strategic implications of this concentration. National production remains largely oriented towards the export of metallic raw material, without state control over international flows, minimum local content requirements for technological transformation, or structured public policies to promote value addition or the formation of strategic reserves for market stabilisation. The lack of an official international quotation even prevents niobium from being treated as a structured financial asset, limiting its circulation as a hedging or investment instrument. In short, global niobium production is a singular example of a natural monopoly converted into private commercial hegemony. Brazil is simultaneously the largest holder, producer, and exporter of a resource fundamental to the energy transition, the aerospace industry, electronic devices, and the strategic defence capabilities of major world powers. This position grants the country a natural comparative advantage, yet it requires an intelligent and sovereign national strategy to convert this advantage into negotiating leverage, domestic value addition, technological innovation, and autonomous geopolitical positioning. Without such measures, Brazil’s niobium monopoly will remain a dormant asset — an exporter of raw potential and an importer of industrialised solutions that could otherwise be developed domestically. Unlike other industrial metals (such as copper, aluminium, or nickel), niobium is not traded on commodity exchanges or futures markets like the London Metal Exchange (LME) or COMEX. Contracts are negotiated directly between producers and buyers, with prices determined by private arrangements based on quality, application, term, and volume. This model, known as an opaque market or performance contract, prevents financial speculation but simultaneously restricts market transparency and liquidity. As a result, there is no daily public price for niobium; strategic stocks are held privately; and hedging strategies (financial risk protection) are limited. This arrangement benefits major producers — especially CBMM — which imposes its technical and commercial standards as the global benchmark. At present, there are no direct substitutes equivalent to niobium in its most critical applications, particularly in the manufacture of microalloyed steels and high-performance superalloys. Materials examined as partial substitutes include vanadium — with inferior thermal resistance; titanium — which is more costly and less ductile in certain alloys; and rare earth elements — which have greater chemical instability and are largely dependent on China. From an industrial perspective, replacing niobium would entail increased structural weight, reduced material durability, higher costs, and the necessity of new certification tests — factors that make substitution economically unattractive in the short and medium term. Against this backdrop, the international dependence on Brazilian production constitutes not only a commercial reality but also a systemic vulnerability for several nations. In this context, it is pertinent to note that, when signing the Executive Order of 30 July 2025, then-President of the United States, Donald Trump, declared a national state of emergency under the International Emergency Economic Powers Act (IEEPA), holding the Government of the Federative Republic of Brazil responsible for practices deemed to undermine the national security, economy, and foreign policy of the United States. As a consequence, an additional 40 per cent tariff was imposed on Brazilian products, resulting in a total taxation level of 50 per cent[19]. At the same time, certain items were explicitly excluded from this surcharge, and niobium was among the goods exempted, thereby being removed from the additional tariff. This measure demonstrates that President Trump was fully cognisant of niobium’s strategic importance, particularly in the context of critical industrial supply chains and the national security of the United States. The Geopolitics of Niobium’s External Dependence The near-total concentration of niobium reserves and production in the Federative Republic of Brazil has transformed this resource into a highly sensitive geopolitical variable. While most strategic minerals have a relatively diverse geographic distribution — such as lithium, found in the so-called “Lithium Triangle” (Argentina, Bolivia, and Chile), or copper, mined in Chile, Peru, China, and the Democratic Republic of the Congo — niobium is an exception: over 90 per cent of its practical availability, in technical, legal, and logistical terms, is concentrated in Brazil. This natural monopoly confers upon Brazil a unique position in the critical industrial supply chains of the 21st century, especially within a context of energy transition, green re-industrialisation, and global shifts in power[20]. Niobium’s external dependence is not solely economic but also strategic. Several industrialised countries — including the United States of America, the Federal Republic of Germany, Japan, and the Republic of Korea — rely on Brazilian imports to sustain sensitive sectors of their technological, military, and energy infrastructure. The North American case is particularly illustrative. According to data from the United States Geological Survey (USGS), approximately 87 per cent of the niobium consumed by the United States originates from Brazil, with the remainder sourced, to a lesser extent, from Canada. Since 2018, the mineral has been included on the official list of critical minerals published by the United States Department of the Interior, pursuant to Executive Order 13817, in recognition of its essential role in strategic sectors and its high vulnerability in the event of a supply disruption. Technical reports prepared by the Pentagon and opinions from United States strategic intelligence agencies, combined with documents released through WikiLeaks, indicate that Brazilian reserves — in particular, the Araxá mine in the State of Minas Gerais — are regarded as assets of vital geostrategic interest to the national security of the United States[21]. This vulnerability has prompted industrial powers to pursue diversification strategies. Canada operates the Niobec mine in Quebec, which accounts for about 8 per cent of global ferroniobium supply, although its scale remains incomparable to that of Brazil[22]. The United States is assessing the Elk Creek Project in Nebraska, led by NioCorp Developments Ltd., but this venture has yet to enter commercial operation and faces significant challenges in financing, environmental regulation, and logistics[23]. The People’s Republic of China, by contrast, has pursued a different strategy, acquiring equity stakes in Brazilian niobium and phosphate assets through CMOC Brasil, and positioning itself today as the second-largest producer of niobium globally[24]. This approach has placed niobium squarely within the Sino-American contest over critical minerals and technological leadership in the 21st century. This scenario reveals a geopolitical paradox: Brazil holds an extraordinary potential position of power, yet has not consolidated this advantage as an instrument of diplomacy, economic leverage, or industrial policy. There is no structured national policy of mineral sovereignty for niobium. Governance of the sector is fragmented, characterised by the absence of robust state guidelines, the private concentration of technical expertise, and insufficient coordination between foreign policy, scientific research, and value-added industrial development. Finally, the stability of the global niobium market — based on private contracts and lacking both a stock exchange listing and futures trading — depends largely upon CBMM’s historic reliability as a supplier. However, this stability is fragile in the face of climate-related risks, trade disputes, diplomatic tensions, or domestic political shocks. What is presently perceived as a predictable supply chain could, in a time of crisis, become a global bottleneck. Niobium, therefore, is not merely a technical commodity but also a sovereign asset, a driver of international influence, and a potential pillar of 21st-century industrial policy. Understanding this geopolitical dependence is the first step towards Brazil’s strategic repositioning on the global stage. The following sections will examine Brazilian mineral governance and the opportunities to convert this comparative advantage into a driver of effective leadership. Why Brazil Still Does Not Have a National Niobium Policy? Legal, Institutional, and Strategic Diagnosis Brazil’s near-absolute control over global niobium reserves and production has yet to translate into a coordinated, systemic, and sovereign national policy. Although the country occupies a unique position on the international stage, equivalent to a global natural monopoly, the governance of this asset remains diffuse, captured by private interests, lacking a specialised legal framework, and disconnected from the diplomatic and industrial strategies of the Brazilian State. The Brazilian legal system does not have specific legislation regulating strategic minerals such as niobium — a serious regulatory gap when compared to other major geoeconomic powers. At present, niobium is regulated only in a generic manner by Decree-Law No. 227/1967 (Mining Code) and through the residual competences of the Agência Nacional de Mineração (ANM – National Mining Agency), whose remit is limited to the technical and fiscal oversight of mining activities. Although Brazil established, via Decree No. 10.657/2021, the Política de Apoio ao Licenciamento Ambiental de Projetos de Investimento em Minerais Estratégicos (Policy to Support Environmental Licensing of Investment Projects in Strategic Minerals), creating the Comitê Interministerial de Análise de Projetos de Minerais Estratégicos (Interministerial Committee for the Analysis of Strategic Mineral Projects – CTAPME) and including niobium in the official list of the Ministry of Mines and Energy, this initiative still lacks a robust and permanent regulatory framework addressing the matter from the standpoint of national security, industrial policy, and the country’s strategic geoeconomic positioning[25]. Unlike the United States (which regularly publishes lists of critical minerals under special protection regimes), the European Union (which maintains the European Observatory for Critical Raw Materials), and the People’s Republic of China (which sets quotas, builds strategic stockpiles, and provides incentives for technological transformation), Brazil does not legally recognise the exceptional status of niobium. Consequently, there is no strategic legal classification for substances of sovereign interest. This omission compromises the regulatory autonomy of the Brazilian State, prevents the strategic use of niobium in international agreements, and renders impossible the adoption of policies for vertical integration, inventory control, fiscal incentives, and local content clauses — all fundamental instruments of Economic Law and contemporary mineral policy. Brazil’s niobium production chain is highly concentrated in private hands, with absolute dominance by the Companhia Brasileira de Metalurgia e Mineração (CBMM) and, to a lesser extent, CMOC Brasil — a subsidiary of the Chinese multinational. The State has no mechanism for strategic control over trade flows, pricing, reserves, or the geopolitical allocation of the product. The absence of a state-owned or mixed-capital company dedicated to the sector — akin to Petrobras in oil or Indústrias Nucleares do Brasil (INB) in uranium — represents an institutional vacuum, denationalising mineral policy and subjecting a geopolitically significant input to purely corporate criteria. Furthermore, the private contractual framework between foreign producers and buyers, conducted without public auction, regulated market, or international quotation, undermines transparency, hampers tax collection, and deprives the State of influence over the value chain. This state of affairs implicitly contravenes the principle of the supremacy of the public interest over the private interest — fundamental to Brazilian Administrative Law — and compromises the foundations of Regulatory Law by limiting the State’s normative authority over sectors that are sensitive to national security and the collective economic interest. Public governance of niobium in Brazil is marked by chronic institutional fragmentation. Responsibilities relating to mining, science and technology, foreign trade, national defence, foreign affairs, regional development, and technical education are dispersed among various ministries and agencies, without functional integration or coordination by a higher-level body. For example, there is no Conselho Nacional de Minerais Estratégicos (National Council for Strategic Minerals) or an interministerial committee with decision-making powers on the matter. This absence prevents the formulation of integrated multi-year plans, local content targets, industrial financing policies, or mineral diplomacy strategies based on national interests. The result is the perpetuation of a reactive, unstructured public policy limited to the technical-operational scope of the ANM. From the perspective of Public Policy Law, this is a case of systemic governance failure, in which the absence of a coordinating authority prevents the transformation of mineral assets into levers for development. The lack of unified command undermines the possibility of long-term planning and denies the country full regulatory sovereignty. Brazil’s tax system makes no distinction between the fiscal burden on exports of raw ferroniobium and on exports of products with a higher degree of technological transformation, such as superalloys, specialised oxides, or composite materials. This fiscal neutrality discourages domestic industrialisation of the niobium production chain, reducing the country to the role of global supplier of basic inputs without retaining added value domestically. Furthermore, the Compensação Financeira pela Exploração de Recursos Minerais (CFEM – Financial Compensation for the Exploitation of Mineral Resources), provided for in Article 20, §1 of the Federal Constitution, is applied uniformly, without selective criteria to reward projects incorporating innovation, sustainability, or value addition. Fiscal policy, as an instrument of public policy, is in this respect underutilised. There is an urgent need for extra-fiscal tax mechanisms, such as regressive rates for more highly processed products, incentives for the export of finished goods, and tax credit lines linked to niobium-based research, technical training, and energy transition projects. The current fiscal omission reinforces Brazil’s entrapment in a logic of dependent extractivism, incompatible with its geoeconomic potential. Despite Brazil’s growing international relevance as a niobium supplier — particularly to the United States, Japan, Germany, and China — the subject remains absent from the country’s foreign policy agenda and geopolitical strategy. The Ministry of Foreign Affairs has yet to structure a specialised mineral diplomacy, as countries like Canada, Australia, and India have done, nor does it use niobium as a bargaining instrument for geoeconomic advantage, scientific cooperation, or the development of technological partnerships. The absence of a “soft mineral power” strategy constitutes a squandered opportunity, especially as niobium’s centrality is set to increase in the era of renewable energy, microelectronics, and the aerospace industry. By failing to employ niobium as a bridge to integrate universities, innovation centres, and strategic alliances, Brazil forgoes legitimate international influence based on its unique mineral endowment. From the standpoint of International Relations and International Economic Law, the country remains peripheral despite being central to the supply of a critical resource. Formal sovereignty over subsoil resources does not translate into active geopolitical sovereignty — a paradox of significant strategic weight. The lack of a national niobium policy is, above all, symptomatic of profound institutional disarticulation, regulatory inertia, and a limited vision of Brazil’s role in the 21st century. Overcoming these barriers requires mobilising the instruments of Administrative, Fiscal, International, and Regulatory Law, combined with a new model of public mineral policy. Transforming niobium into an asset of sovereignty, innovation, and international prominence depends on the simultaneous adoption of five fronts: the creation of a specific legal framework; permanent interministerial coordination; sectoral fiscal reform; expansion of mineral diplomacy; and an industrial and scientific policy focused on value-added development. Final Considerations The consolidation of a National Niobium Policy in Brazil presupposes, above all, the recognition of this resource as an asset of national sovereignty, of inestimable geopolitical and technological value. Such a policy must be supported by a new legal framework that formally recognises niobium as a strategic mineral, granting it special legal status in light of the principles of Brazilian Administrative Law and Economic Law. This legislation should enable the State to act not only as a regulator but also as the coordinator of a public agenda focused on value creation, industrial innovation, and international recognition. Furthermore, it is essential to establish a public authority with the technical and legal expertise, international legitimacy, and executive capacity necessary to coordinate interministerial policies and formulate national guidelines for the governance of critical minerals. The tax system must be repositioned to shift from being merely a revenue-generating instrument to becoming an incentive instrument: fostering the domestic industrialisation of the niobium supply chain, rewarding local content, research, and vertical integration initiatives, and discouraging the simple export of raw alloys. Simultaneously, Brazil must launch a proactive mineral diplomacy that employs niobium as a vector for strategic insertion into global value chains in clean energy, defence, aerospace, microelectronics, and emerging technologies. This diplomacy must be underpinned by bilateral scientific cooperation agreements, technology security protocols, and multilateral initiatives positioning Brazil as a reliable and innovative supplier of critical raw materials. In the current international scenario, niobium is gaining centrality as a geopolitical asset in strategic negotiations between Brazil and the United States, particularly in light of the potential reconfiguration of United States foreign policy with Donald Trump’s return to power. Trump’s global project is essentially based on three pillars: national reindustrialisation, combating strategic dependence on rival powers (especially China), and reviewing international agreements that do not directly favour United States economic interests. This constitutes a doctrine of aggressive commercial nationalism, with a pronounced protectionist bias and a technocratic view of critical resources and sensitive production chains. In this context, niobium — a key input for advanced metal alloys, superconductors, defence technologies, and aerospace infrastructure — assumes the status of a priority raw material in the national security strategy of the United States. The country’s greatest vulnerability lies in its near-total dependence on Brazil for this mineral, given that its own reserves are insignificant and its strategic stocks limited. Trump’s potential re-election to the White House would intensify the United States’ focus on securing a stable, predictable, and politically reliable supply of niobium, thereby increasing Brazil’s bargaining power to an unprecedented degree. It is therefore imperative that Brazilian diplomacy avoid reactive and emotional responses, and instead adopt a cool, strategic, and technically informed posture, operating from the Executive Branch with interministerial coordination, and avoiding isolated protagonism by the Judiciary. The recent crisis involving decisions of the Supreme Federal Court that directly affected large American technology corporations (such as Google and Meta) has raised alarms in Washington about the legal and reputational risks of operating in Brazil. Although legitimate from the standpoint of jurisdictional sovereignty, such decisions generated institutional discomfort within the United States Department of State and provoked behind-the-scenes pressure in the United States Congress. The centrality of niobium, however, must be understood as part of a broader spectrum of strategic assets under the stewardship of the Brazilian State, whose mobilisation can strengthen Brazil’s position in negotiations with the United States. In short, it is evident that the Federal Executive Branch is not limited to niobium as the sole mineral asset capable of strategic mobilisation in relations with the United States. Brazil possesses a wider range of geoeconomic assets that can be deployed in bilateral negotiations. The ongoing crisis demands a coordinated approach at the diplomatic, political, and commercial levels, guided by strategic rationality and institutional coordination. It is implausible to suppose that Donald Trump criticised the Supreme Federal Court merely out of deference to Eduardo Bolsonaro or emotional ties to Jair Bolsonaro. The hallmark of Trump’s political conduct is pragmatism, and his foreign strategy has consistently been guided by the defence of the objective interests of American corporations. In this context, Brazilian court decisions directly affecting such companies — often perceived in the United States as arbitrary or incompatible with fundamental guarantees and human rights — came to be regarded as institutional affronts, thereby legitimising, in Trump’s view, an assertive posture towards the Brazilian Judiciary. This was one of the political strands underpinning Trump’s actions in exercising his sovereignty, particularly through the extraterritorial application of United States law — a recurring instrument of American foreign policy in the defence of its strategic and commercial interests. What Trump may fail to appreciate is that, within the Brazilian institutional framework, the Judiciary enjoys even greater independence and autonomy than is provided for in the North American system. Furthermore, decisions issued by the Supreme Federal Court are jurisdictional in nature and are not, under any circumstances, subject to the authority or responsibility of the Executive Branch, owing to the strict separation of powers enshrined in the 1988 Constitution. Accordingly, a clear distinction must be maintained in trade negotiations between impasses arising from the actions of the Judiciary and matters strictly related to bilateral economic relations. The Brazilian Judiciary is responsible for its own actions, including at the international level, although it may be institutionally assisted by the Office of the Attorney General in the exercise of its defence before other jurisdictions. However, relations and commercial ties between the two countries must proceed autonomously and in parallel, preserving their own logic and institutional continuity, regardless of any internal jurisdictional disputes that may occur within the Brazilian State. Given this context, Brazil must formulate structured, state-to-state negotiations with the United States, conducted with clarity as to the competing strategic interests, in order to safeguard its internal regulatory autonomy, preserve its central role in the global supply of niobium, avoid potential economic retaliation, and ideally transform this resource into a vector for diplomatic détente and economic reconfiguration within the framework of the new United States industrial policy. This is not a matter of subservience, but of geostrategic intelligence: by accurately identifying the United States’ core objectives — such as secure access to critical raw materials, diversification of supply chains, and revitalisation of its industrial base — Brazil positions itself as an indispensable partner. In return, it can seek political space, technology transfer, co-production agreements, and reinforcement of its standing as a geoeconomic power in the Global South. The Brazilian Government cannot be held responsible for the acts of another sovereign state, much less for those of an entire population. The Office of the Attorney General defends this prerogative by representing the political agents of the Brazilian Judiciary against potential interference by a foreign court in their functional autonomy. However, this institutional defence — also exercised pursuant to Article 131 of the Federal Constitution and Article 22 of Law No. 9,028/95 — is not necessarily a political component of trade negotiations between the two countries, despite appearing to be so in Trump’s view[26]. If it is true that Brazil, through the Supreme Federal Court, has exercised its sovereign powers, it is equally true that the United States, through its Executive Branch, when applying the Executive Order Addressing Threats to the United States by the Government of Brazil, would also be exercising its sovereign powers, insofar as it applies a law approved by its National Congress and within its domestic jurisdiction, with transnational, economic, technological, and financial repercussions[27]. There can be little doubt that the underlying political motivation for Trump’s actions was not the result of manipulation by the Bolsonaro family — and even less by Eduardo Bolsonaro — but rather politically calculated decisions based on the transnational effects of Supreme Federal Court rulings on the economic interests of major United States companies of substantial social and political significance in that country. In my work Administrative Sanctioning Law[28], now in its 10th edition and present in the publishing market for 25 years, I had the opportunity to comment on certain decisions of the Supreme Federal Court of Brazil, under the rapporteurship of Justice Alexandre de Moraes, in cases involving the convictions of individuals who had been at the encampment in front of the Court on 8 January 2024. In the decisions I examined, I observed that there had been violations of human rights, as strict (objective) criminal liability was applied. A statistical study would be necessary on the number of decisions issued in the same vein and following the same pattern: absence of individualisation of conduct, imposition of objective liability for the mere fact of having camped in front of the Supreme Federal Court, and a presumption of responsibility for an anti-democratic act. There have also been statements and protests in Brazil from numerous institutions, including the Brazilian Bar Association itself, against the arbitrariness committed in the so-called “fake news inquiry” and against the violation of professional prerogatives and restrictions on rights of defence. However, there are no statistical studies demonstrating or proving a systemic erosion of human rights stemming from these decisions. The political rationale underpinning United States tension and interventionism must be correctly identified. To what extent has the Supreme Federal Court of Brazil become a global legal risk to the human rights protected by the United States? In this context, it is clear that this discussion takes on its own contours, and that the role of the Office of the Attorney General is to defend, in legal terms, the justices of the Supreme Federal Court and any other political agents affected by foreign jurisdiction as a result of official acts performed in office. Nevertheless, the allegation that such acts violated the human and fundamental rights of American companies — or even those of Brazilian citizens — must be debated in the appropriate forum, and cannot, and should not, be conflated with trade negotiations concerning relations between the two countries and the interests of their respective peoples. It is also pertinent to recall the recent decision of the Supreme Federal Court in Petição No. 14.129, in which Justice of the Supreme Federal Court, Alexandre de Moraes ordered the preventive detention of former President Jair Messias Bolsonaro for persistent non-compliance with court-imposed precautionary measures. The ruling established that Bolsonaro had repeatedly and wilfully circumvented restrictions — including the prohibition on using social media directly or through third parties — by orchestrating and participating in public communications designed to undermine the authority of the Court and to interfere unlawfully in ongoing judicial proceedings. The decision, grounded in the need to protect the integrity of criminal investigations and to safeguard national sovereignty from coordinated attempts to destabilise Brazilian institutions, underscores that judicial determinations of this nature are matters of domestic legal order, immune to external political bargaining. As such, they must be understood as the exercise of Brazil’s sovereign jurisdiction, entirely distinct from — and not to be conflated with — the negotiation of economic or diplomatic agreements. References NATIONAL MINING AGENCY (Brazil). Niobium: Brazilian mineral summary 2024: base year 2023. Brasília: ANM, 2024. 2 p. 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Available at: https://agenciagov.ebc.com.br/noticias/202311/brasil-eo-principal-agente-no-mercado-mundial-de-niobio. Accessed on: 31 July 2025. BRAZILIAN COMPANY FOR INDUSTRIAL RESEARCH AND INNOVATION (EMBRAPII); CENTRE FOR MANAGEMENT AND STRATEGIC STUDIES (CGEE). Technological radar: technologies with niobium. Brasília: DIESP/CGEE, Jan. 2023. 53 p. Revised edition with executive summary. UNITED STATES. Executive Order: Addressing Threats to the United States by the Government of Brazil. Washington, DC: The White House, 30 July 2025. Available at: https://www.whitehouse.gov/presidential-actions/2025/07/addressing-threats-to-the-us/. Accessed on: 3 August 2025. ÍGNEA – GEOLOGY AND ENVIRONMENT. Strategic Minerals Policy: A Comprehensive and Detailed Guide. Brasília: Ígnea, 9 April 2025. Available at: https://www.igneabr.com.br/en/noticias/general-laws-and-rules/strategic-minerals-policy-a-comprehensive-and-detailed-guide/. Accessed on: 31 July 2025. BRAZILIAN MINING INSTITUTE (IBRAM). 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Accessed on: 31 July 2025. MA, Xiaoping; ZHOU, Cheng; WANG, Lijun; LIU, Chunming; SUBRAMANIAN, Sundaresa; OLIVEIRA, Mariana Perez de. Role of Nb in 13Cr super-martensitic stainless steel. REM: Revista Escola de Minas, Ouro Preto, v. 66, n. 2, p. 179–185, Apr./Jun. 2013. Available at: https://www.scielo.br/j/rem/a/dcSNBbYRbBbp4gGbmCZcxDM/?lang=en. Accessed on: 31 July 2025. SUSTAINABLE MINING. Critical and strategic minerals: the foundation of Brazil’s sustainable future. Brasília: Mineração Sustentável, 26 May 2025. Available at: https://mineracaosustentavel.org.br/minerais-criticos-e-estrategicos-a-base-do-futuro-sustentavel-do-brasil/. Accessed on: 31 July 2025. NIOBIUM CANADA. Who mines niobium? Canada: Niobium Canada, 2023. Available at: https://niobiumcanada.com/who-mines-niobium/. Accessed on: 31 July 2025. NIOCORP DEVELOPMENTS LTD. Elk Creek Project. NioCorp, 2025. Available at: https://www.niocorp.com/elk-creek-project/. Accessed on: 31 July 2025. NIOCORP DEVELOPMENTS LTD. NioCorp releases 2019 update to Elk Creek feasibility study. Centennial, CO: NioCorp, 28 May 2019. Available at: https://www.niocorp.com/niocorp_releases_2019_update_to-elk_creek_feasibility_study/. Accessed on: 31 July 2025. NICO, C.; MONTEIRO, T.; GRAÇA, M.P.F.. Niobium oxides and niobates physical properties: review and prospects. Progress in Materials Science, Amsterdam, v. 80, p. 1–37, 2016. ISSN 0079-6425. Available at: https://www.sciencedirect.com/science/article/pii/S0079642516000116. Accessed on: 31 July 2025. NS ENERGY BUSINESS. Elk Creek Project. London: NS Energy, 2023. Available at: https://www.nsenergybusiness.com/projects/elk-creek-project/. Accessed on: 31 July 2025. SEER, Hildor José; MORAES, Lúcia Castanheira de. Niobium. In Mineral Resources of Minas Gerais Online. Federal University of Minas Gerais (UFMG) and Codemge, Minas Gerais. Available at: http://recursomineralmg.codemge.com.br/substancias-minerais/niobio/. Accessed on: 31 July 2025. 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DOI:https://doi.org/10.1590/0104-9224/SI2202.06; MA, Xiaoping; ZHOU, Cheng; WANG, Lijun; LIU, Chunming; SUBRAMANIAN, Sundaresa; OLIVEIRA, Mariana Perez de. Role of Nb in 13Cr super-martensitic stainless steel. REM: Revista Escola de Minas, Ouro Preto, v. 66, n. 2, p. 179–185, Apr./Jun. 2013. Available at:https://www.scielo.br/j/rem/a/dcSNBbYRbBbp4gGbmCZcxDM/?lang=en. [8] BRAZILIAN COMPANY FOR INDUSTRIAL RESEARCH AND INNOVATION (EMBRAPII); CENTER FOR MANAGEMENT AND STRATEGIC STUDIES (CGEE). Technological radar: niobium-based technologies. Brasília: DIESP/CGEE, Jan. 2023. 53 p. Revised edition with executive summary. [9] BRAZILIAN COMPANY FOR INDUSTRIAL RESEARCH AND INNOVATION (EMBRAPII); CENTER FOR MANAGEMENT AND STRATEGIC STUDIES (CGEE). Technological radar: niobium-based technologies. Brasília: DIESP/CGEE, Jan. 2023. 53 p. Revised edition with executive summary. [10] BRAZILIAN MINING INSTITUTE (IBRAM). Brazil rejects nuclear fusion project offer due to niobium. Brasília: IBRAM, July 11, 2023. Available at:https://ibram.org.br/noticia/niobio-brasil-recusa-oferta-para-projeto-de-fusao-nuclear/. Accessed on: July 31, 2025. [11] BRAZILIAN COMPANY FOR INDUSTRIAL RESEARCH AND INNOVATION (EMBRAPII); CENTER FOR MANAGEMENT AND STRATEGIC STUDIES (CGEE). Technological radar: niobium-based technologies. Brasília: DIESP/CGEE, Jan. 2023. 53 p. Revised edition with executive summary. [12] SUSTAINABLE MINING. Critical and strategic minerals: the foundation of Brazil's sustainable future. Brasília: Mineração Sustentável, May 26, 2025. Available at:https://mineracaosustentavel.org.br/minerais-criticos-e-estrategicos-a-base-do-futuro-sustentavel-do-brasil/. Accessed on: July 31, 2025; BRAZILIAN COMMUNICATIONS COMPANY (EBC). Brazil is the main agent in the global niobium market. Brasília: EBC, 2023 (published in November 2023). Available at:https://agenciagov.ebc.com.br/noticias/202311/brasil-eo-principal-agente-no-mercado-mundial-de-niobio. 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Available at:https://www.argusmedia.com/metals-platform/newsandanalysis/article/2688344-Niobec-s-FeNb-production-continues-despite-strike. Accessed on: July 31, 2025. [23] NIOCORP DEVELOPMENTS LTD. Elk Creek Project. NioCorp, 2025. Available at:https://www.niocorp.com/elk-creek-project/. Accessed on: July 31, 2025 [24] CMOC BRAZIL. Business – Niobium. CMOC Brazil, 2024. Available at:https://cmocbrasil.com/en/negocios/niobio. Accessed on: July 31, 2025. [25] ÍGNEA – GEOLOGY AND ENVIRONMENT. Strategic Minerals Policy: A Comprehensive and Detailed Guide. Brasília: Ígnea, April 9, 2025. Available at:https://www.igneabr.com.br/en/noticias/general-laws-and-rules/strategic-minerals-policy-a-comprehensive-and-detailed-guide/. Accessed on: July 31, 2025. [26] BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, October 5, 1988. Available at:https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on: August 3, 2025; BRAZIL. 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SUMMARY This essay addresses the strategic and essential relevance of the constitutional right to understanding the decisions of public authorities, resulting from the consolidation and maturation of the constitutional principles of publicity, transparency, justification for administrative and jurisdictional acts, substantial due process, equality, adversarial proceedings, full defense, human dignity, proportionality, reasonableness, and other fundamental rights enshrined in the 1988 Constitution. The application of these rights depends vitally, in the digital age of complexity, on systemic traceability structured in intelligent, digital, auditable legal databases based on statistics and statistical models. In this sense, this work addresses the concept of the right to understanding as a systemic and deeper evolution, derived from the set of fundamental rights, which modifies the traditional paradigm of publicity and transparency in public sector decision-making bodies—especially in light of the mandatory observance of judicial precedents by judges, courts, and administrative authorities. In this regard, the aim is to contextualize the right to understanding within the normative universe that enables people's access to structured legal databases, artificial intelligence, statistics, and the auditability of algorithms and databases. At the same time, this essay seeks to demonstrate the relevance of these contemporary tools for understanding the decision-making acts of public authorities. Finally, it aims to emphasize the importance of strengthening the culture, coherence, traceability, predictability, and self-criticism of authorities regarding the content and identification of decision-making patterns, as well as strengthening the culture of teaching, the culture of precedents, artificial intelligence, and access to databases in institutions as a whole — including education institutions and access to justice. KEYWORDS Right to Understanding; Precedents; Transparency; Publicity; Artificial Intelligence; Legal Databases; Statistics; Auditability; Public Decisions and Due Process of Law.   ABSTRACT This essay addresses the strategic and essential relevance of the constitutional right to understand public authorities' decisions, as a result of the consolidation and maturation of constitutional principles such as publicity, transparency, reasoning of administrative and judicial acts, substantive due process of law, equality, adversarial proceedings, broad defense, human dignity, proportionality, reasonableness, and other fundamental rights enshrined in the 1988 Brazilian Constitution. In the digital era of complexity, the effective application of these rights depends fundamentally on systemic traceability, structured through intelligent, digital, auditable legal databases supported by statistics and statistical models. In this sense, the work discusses the concept of the right to understanding as a systemic and more profound evolution derived from the set of fundamental rights, modifying the traditional paradigm of publicity and transparency in public decision-making bodies—especially in light of the mandatory observance of judicial precedents by judges, courts, and administrative authorities. Accordingly, this essay aims to contextualize the right to understanding within the normative framework that enables public access to structured legal databases, artificial intelligence, statistics, and the auditability of algorithms and databases. Simultaneously, it seeks to demonstrate the importance of these contemporary tools in understanding public decision making acts. Finally, this essay also emphasizes the importance of strengthening a culture of coherence, traceability, predictability, and institutional self-criticism regarding the content and identification of decision-making patterns, as well as reinforcing a culture of education, precedents, artificial intelligence, and data access across institutions—from educational frameworks to mechanisms of access to justice. KEYWORDS Right to Understand; Precedents; Transparency; Advertising; Artificial Intelligence; Legal Databases; Statistics; auditability; Public Decisions; Due Process of Law.   1. Introduction The classic right to publicity and transparency of judicial and administrative acts, provided for in Articles 5, items LX and XXXIII, 93, IX, and 37, caput, all of the 1988 Constitution, derives from the framework of contemporary liberal democracies. These same requirements of transparency and publicity coexist with the possibility of protecting intimacy, privacy, and confidentiality, whether in the cases provided for in the Constitution or in cases provided for by law 2. However, the digital age, intertwined with the concepts inherent to the era of complexity, in which transformations and the speed of events and plural thoughts interconnect, demands a rethinking of the hermeneutics regarding the scope of transparency and publicity surrounding decisions restricting fundamental rights. In the Brazilian Constitution of 1988, there is no doubt that it is necessary to interpret in a coherent and harmonious manner the requirements of transparency (art. 5, LX and XXXIII; art. 37, caput), publicity (art. 93, IX) and justification for judicial and administrative decisions (art. 93, IX; art. 37, caput), together with the mandatory observance of the prohibition of arbitrariness of public powers, resulting from substantive due process of law (art. 5, LIV), obedience to substantive and formal due process of law (art. 5, LIV and LV), compliance with legal certainty (art. 5, caput and XXXVI), equality (art. 5, caput and I), adversarial proceedings (art. 5, LV), full defense (art. 5, LV) and respect for human dignity (art. 1, III). As if this indispensable integration of this set of constitutional requirements connected to the transparency and publicity of state decisions were not enough, the duty of coherence, objective good faith and institutional loyalty was also embraced by the legislator, under the aegis of the democratic principle, when providing for the mandatory observance of precedents by the Judiciary and administrative authorities, when issuing their decisions and formatting jurisprudence in the application of laws (articles 926, 927, 928, 489, § 1, items V and VI, and 1,036 to 1,041 of the 2015 Code of Civil Procedure). In this context, the problem of judicial congestion, slowness, and overload affecting the judiciary is nothing new in Brazil. Furthermore, there is another serious structural problem: the unpredictability that plagues the system, given the lack of a culture of judicial precedent formation. The system adopted by articles 926, 927, 928, 489, §1, items V and VI, and 1036 to 1041 of the 2015 Code of Civil Procedure was not accompanied by a corresponding cultural implementation effort in the areas of education, training of judges, lawyers, and members of institutions essential to justice, much less by a national mobilization to foster this new culture. There is no doubt that there is high-quality national literature on the theory of precedents, originating in English law and embodied, with adaptations, in North American law, from where it emerged into Brazilian law 3. Nevertheless, the Romano-Germanic culture of which Brazil is heir does not automatically adapt to a distinct and secular culture, which presupposes an entire tradition in the construction of precedents, and obstacles persist. In this essay, our purpose is not to address the theoretical obstacles, typical of the field of the great scholars of civil procedural law, related to the dogmatics of precedent theory. As we warned initially, one of the first obstacles we will address in this work is related to the culture of teaching. However, there are essential pragmatic difficulties connected to the implementation of structured databases, artificial intelligence tools, statistics, transparency, and integration with the accessibility of administrative jurisprudence of institutions essential to justice, in addition to institutions that provide public services and enforce administrative norms. In short, the delivery of justice is not an exclusive prerogative of the Judiciary, and the constitutional principles that govern public administration, enshrined in Article 37, caput, of The 1988 Constitution must gain substantial depth to allow access to justice as a genuine fundamental right of the people, a circumstance that presupposes access to structured databases, closely interconnected with advanced artificial intelligence and statistical technologies, so that an authentic theory of judicial precedents can be constructed and administrative jurisprudence linked to these precedents, in a manner that is accessible and transparent to the public. Furthermore, this essay also proposes to demonstrate that this new culture will strengthen institutions and the market with new paradigms of institutional integrity, quality, and protection of fundamental rights, as well as efficiency and competitiveness. In this scenario, our conclusion is that this new framework will be made possible through new transformative compliance models, both in the public and private sectors. Regarding technological innovation in the legal field, it is important to reflect on three priority areas of action: (a) the careful implementation of artificial intelligence in the organization and analysis of documentary and case law collections; (b) systematic education on precedents in higher education institutions and government entities; and (c) expanding the application of the logic of precedents beyond the Judiciary, also encompassing the administrative sphere, such as audit courts, public defenders' offices, and regulatory agencies. One of the hallmarks of the contemporary world, especially in Brazil, is the normative tangle and the constant profusion of laws, constitutional amendments, sub-legal normative acts, regulations, and rules of all kinds—a phenomenon that constitutes a permanently complex and continually changing normative network. As if this sophisticated machinery were not enough, this entire abstract normative apparatus undergoes a surprising metamorphosis when applied to concrete cases submitted for judgment in judicial and administrative instances, where the most diverse authorities boast decision-making autonomy. In practice, we are talking about thousands of judges, appellate judges, and many other ministers of higher courts, as well as members of public prosecutors, public attorneys' offices, regulatory agencies, audit courts, autonomous agencies, decentralized administrations, and multiple state agencies, or even institutions overseeing activities essential to justice. The abstract normative tangle transforms into an even more complex and unpredictable jurisprudential multiplicity, aggravated by the difficulty of access for those administered and under their jurisdiction. This scenario greatly accentuates the compromise of expectations related to legal certainty, equality, transparency, impartiality, substantial publicity and prohibition of arbitrariness by public authorities.   2. Decisional transparency and databases as a constitutional imperative inherent to the right to understand decisions restricting fundamental rights 2.1. Legal Database: Architecture of Transparency and State Accountability The State's actions, in their contemporary form, transcend the limits of formal legislation and judicial decisions. The legal binding of a person—whether human or legal—does not derive solely from rules developed by the Legislative Branch or decisions handed down by courts. They unfold through a multitude of legally binding State actions: administrative decisions, judicial and administrative jurisprudence, agreements concluded with public authorities, administrative contracts, sub-legal normative acts, and other administrative acts that, directly or indirectly, restrict, modulate, or recognize fundamental rights. This plurality of decision-making, dispersed across different spheres and instances of public power, demands an institutional response commensurate with its complexity and impact. It is not enough for such manifestations to be formally accessible; it is essential that they be organized in a systematic, intelligible, and technically structured manner. Thus, the need for a legal database arises, not as a merely archival instrument, but as a material foundation for institutional transparency and state accountability. This database should gather and make accessible the State's decision-making acts that, even if they do not have a typical normative form, produce relevant legal effects on the sphere of human rights. It is an infrastructure focused on qualified publicity, structured research, institutional auditing, and democratic governance. In this scenario, it is imperative that we conceptually address the legal database and its impact on redefining the understanding of public authorities' decisions. A legal database is, initially, a digital structure, whether public or private, but necessarily organized, intelligent and auditable, whose purpose is to capture, gather, receive, classify, order, explain, enable third-party interaction and make data and information intelligible, in order to optimize the institutional performance of the respective holder of this data. bank and its users, respecting the fundamental and individual rights involved, preserving, when necessary, the limits inherent to the duties of confidentiality, in addition to the institutional memory of the decisions and patterns detected. This definition of a database, which always involves legal aspects, recognizes the database as a necessarily intelligent entity. In this context, the legal database must perform at least some essential, fully auditable functions: ordering and classification; intelligence and statistical functions; interactive and organizational functions; and institutional and protective security functions 4. This scope includes judicial decisions, administrative decisions, judicial and administrative jurisprudence, judicial and extrajudicial agreements signed before or with public authorities, administrative contracts, normative acts and any administrative acts that produce legal effects on the sphere of freedom, property, self- determination or legal prerogatives of the person. The legal database, in this sense, is not just an informational repository, but a technical-normative instrument aimed at consolidating public integrity, institutional predictability and social control over state acts. We will examine the legal, constitutional, and technical foundations of the proposed concept, as well as the operational challenges and potential of its application in the context of the digital transformation of the State and the consolidation of data-driven governance models. The function of a database in the legal field transcends the instrumental concept of a mere document repository. It is an institutional infrastructure oriented toward the systematization, rationalization, and transparency of legal knowledge, which carefully gathers and organizes judicial decisions, administrative decisions, case law, formal agreements, and administrative acts with significant legal impact. By adopting logical, chronological, thematic, and functional criteria, this type of database provides strategic support to interpretation and application of the law, allowing qualified access to precedents, normative foundations and coherent lines of argument. When well-structured, a legal database directly contributes to promoting legal certainty, institutional predictability, and the effectiveness of justice. Its function is not limited to consultation: it acts as a tool for consolidating understandings, supporting legal research, and reinforcing the integrity of state decisions. Thus, it ceases to be a secondary technical instrument and establishes itself as a fundamental pillar in the architecture of institutional trust, especially in a context of increasing regulatory complexity and the need for public oversight of state actions. 2.2. Artificial Intelligence and Statistics as Infrastructure for Institutional Inference and Public Motivation Statistics, in the era of mass, standardized decisions and institutional and technological complexity 5, should be understood as the scientific form of rational listening. It is a structured system of inference about regularities and exceptions, capable of identifying patterns, indicating risks of arbitrariness, and offering epistemic support for the legitimacy of public decisions. By transforming data into judgments, statistics allows the State to understand itself, revise its language, and act with predictability, responsibility, and prudence. It is not merely a technical tool for quantification, but a formal language of reasonableness. It organizes the relationship between variability and coherence, offering objective criteria for distinguishing acceptable fluctuations from unjustified deviations. In a scenario where public decisions produce massive, immediate, and cross-cutting effects, statistics become a basis for structural accountability: it provides judges, managers, and regulators with a methodical mirror of the institution itself. It is in this same context that artificial intelligence should be understood, especially in its predictive and explainable aspects. Artificial intelligence is not a substitute for public reason, but a technical extension of its analytical capacity. When guided by structured legal data and combined with statistical inference, AI can detect patterns of institutional behavior, recognize decisions outside expected parameters, suggest relevant precedents, and reinforce argumentative consistency 6. Artificial intelligence acts as an instrument of interpretative traceability, allowing public motivation to be transformed from a formal or rhetorical gesture into a reconstructible, auditable, and comparable process. Its function is to broaden the scope of institutional attention, detect inconsistencies before they consolidate as structural ambiguity, and provide technical support for normative coherence. Like statistics, artificial intelligence doesn't decide: it illuminates, signals, and suggests—so that human judgment can act with greater depth, context, and prudence. Integrated, statistics and artificial intelligence become the infrastructure for public motivation, institutional traceability, and the prohibition of arbitrary action. They operate as invisible pillars of a new form of decision-making accountability, which is no longer supported solely by the authority of the function, but by the verifiable coherence of its foundations. Ultimately, it is about equipping public discourse with technical tools that reinforce its commitment to legality, predictability, and integrity in the 21st century. Statistics and artificial intelligence in the context of public institutions in the 21st century XXI, must be understood as convergent expressions of the same applied rationality: institutional inference under uncertainty. Both operate not only on data; they operate on doubts, asymmetries, variations, and repetitions—those things that, in the daily grind of public decision-making, require prudence, comparison, and motivation. Statistics provides the method of listening. Rational; artificial intelligence expands the scale, speed, and capacity of pattern recognition. Together, they structure a silent verification architecture. Statistics is not just a measurement technique. It is a scientific way of interpreting regularities, recognizing exceptions, and estimating risks based on evidence. It transforms dispersion into structure, variation into signal, and noise into diagnosis. In a complex institutional environment, marked by repeated decisions and conflicting interpretations, statistics act as a filter for reasonableness: it allows us to distinguish between legitimate variations and unjustified deviations. Its function is to anchor public discourse in criteria that can be audited, compared, and eventually revised. Artificial intelligence, in its predictive and explainable aspects, should be understood as a computational continuation of statistical inference. Every model that suggests, classifies, or anticipates the outcome of an institutional decision does so based on probabilistic structures. —sometimes hidden, but always inferential. When combined with structured legal databases and guided by traceability principles, AI becomes an interpretative extension of institutional memory: it allows us to identify relevant precedents, suggest argumentative convergences, and flag decisions that deviate from recognizable norms. Public motivation — which, at the legal level, requires clear and verifiable grounds—finds legitimate technical support in statistics and artificial intelligence. It's not about replacing judgment, but about qualifying it. Decisions that incorporate statistical inference and computational intelligence are no less human; they are more nuanced, more contextualized, and more open to public criticism. Motivation ceases to be a ritual of language and becomes a manifestation of institutional coherence fueled by standards, references, and accountability. By integrating statistics and artificial intelligence, the State reinforces its commitment to the traceability of decision-making and the prohibition of arbitrariness. Where there are identifiable patterns, there must be criteria to justify ruptures. Where there is normative regularity, there must be control over exceptions. The role of these technologies is not to decide—it is to illuminate. They are tools for institutional listening: they allow the State to listen to itself, compare itself, explain itself, and, when necessary, correct itself. This understanding — that statistics and artificial intelligence, integrated and based on structured legal databases, should act as the technical infrastructure for public motivation and as guarantees of traceability, coherence and the prohibition of arbitrariness — was recently corroborated, on an international scale, by the study of Chutisant Kerdvibulvech (Big Data and AI-driven evidence analysis: a global perspective on citation trends, accessibility, and future research in legal applications, 2024) 7. Kerdvibulvech demonstrates, through empirical analysis and a global literature review, that artificial intelligence systems applied to legal analysis — especially in document review, litigation prediction, forensic image analysis, and contract evaluation — only produce legitimate and admissible effects when accompanied by rigorous statistical validation, methodological traceability, and transparent ethical parameters. Statistics, in this context, do not appear as an accessory technique, but as an epistemic guarantee of institutional rationality. Kerdvibulvech argues that statistical inference is essential for controlling biases, measuring uncertainty, and identifying patterns and exceptions. At the same time, artificial intelligence must be applied under interpretable and auditable guidelines, so that institutional decisions—administrative, judicial, or investigative—do not become automatic gestures, but rather motivated acts with depth, prudence, and inferential responsibility. This finding confirms the central thesis of this topic: contemporary public decision- making requires, in addition to legal grounds, a technical basis for inference, verification, and explanation to enable the right to understanding. Furthermore, decisions need to be interpreted within a systemic context to enable societal understanding. By integrating statistics and AI, the public institution commits to a systemic and complex decision-making language model, authentically integrated, capable of resisting structural ambiguity, preventing normative inconsistencies, and ensuring predictability without rigidity. Motivation ceases to be a formal requirement and becomes a continuous exercise of institutional listening: listening to data, patterns, ruptures, and the limits of one's own decision-making power. The structuring of case law, administrative, and business databases should not only serve retrospective statistics or predictive artificial intelligence. Their deeper role is to provide a stable, auditable, and technically grounded language for the conclusion of out-of- court settlements and to guide public authorities in their decisions, whose legitimacy depends on consistency with past decisions—whether judicial, administrative, or business. The lack of this anchoring in precedents and prior agreements compromises not only fairness between parties in similar situations, but also the but also the logical integrity of the normative function exercised by institutions. As Chutisant Kerdvibulvech (2024) demonstrates, disorganized or disjointed data weaken artificial intelligence systems, impede pattern detection, and obscure systemic deviations. Therefore, to be legitimate, effective, and transparent, judicial or extrajudicial agreements must be integrated into the institutional memory formalized within contemporary technological standards rather than 20th-century methodology, reflecting already recognized standards and allowing public control over their consistency with the historical language of decisions. In this context, the coordinated application of statistics and artificial intelligence offers public and private institutions the possibility of developing a cognitive infrastructure focused on analyzing, cross-referencing, and validating these databases. Statistics allow for mapping decision-making frequencies, identifying recurring argumentative patterns, and recognizing hermeneutical inflection points—including in historical series of out-of-court settlements and administrative decisions. Artificial intelligence, fueled by this structured universe, becomes capable of performing more sophisticated tasks: detecting internal inconsistencies, pointing out unjustified divergences between similar cases, assessing adherence to precedents, and predictively flagging risks arising from solutions outside the institutional framework. This combined functionality acts as a silent engine of coherence. Systems trained with properly classified, versioned, and traceable data can offer, for example, suggestions for clauses aligned with the terms of previous similar agreements, alert to the risks of contradictory decisions, or project regulatory impacts not yet perceived by traditional legal rationality. The potential of this analytical architecture is not limited to efficiency, but reaches a deeper level: institutional self-awareness. It allows organizations to observe themselves, review themselves, learn from their own records, and, above all, establish a language that can be recognized and replicated responsibly. The constitutional right to understanding inaugurates a new interpretative paradigm and breaks the limits of administrative and jurisdictional transparency and publicity. Decision-making acts must be understandable; it is not enough to be public and transparent. They must be well- founded, rational, and coherent. No one understands an arbitrary act. Coherence ceases to be merely a rhetorical aspiration and becomes monitorable, auditable, and measurable by metrics informed by empirical standards. Even an out-of-court or judicial settlement ceases to be an isolated gesture of convenience and becomes part of an ecosystem of decisions. Interdependent, subject to technical scrutiny and comparative review. This expands the capacity of the State and corporations to engage with their own precedents—judicial, administrative, and business—without losing sight of the uniqueness of each case. Artificial intelligence and statistics, together, do not replace institutional deliberation, but rather accompany it with an ethical horizon: avoiding distortions, preserving memory, and preventing arbitrariness from masquerading as discretion. For the theory of precedents to operate as the rational core of the legal system—as required by stare decisis—it is essential that case law be analyzed not only hermeneutically but also through statistical and computational resources capable of diagnosing its internal fractures. Statistics, in this field, allows us to identify divergent patterns between decisions on analogous cases, map the dispersion of reasoning across different chambers and courts, and quantify the degree to which decisions adhere to or deviate from qualified precedents, signaling which areas offer legitimate controversy or hermeneutical discretion and which areas are pure anomalies and arbitrariness. This is a diagnostic and predictive function: it highlights where the system behaves coherently and where, due to interpretative or contextual flaws, it begins to lose its consistency and even enter suspect zones. Artificial intelligence, powered by structured databases with robust metadata (topic, thesis, adjudicating body, rapporteur, outcome, main grounds, legal provisions invoked), can go further: it can not only identify these inconsistencies but also project future deviations based on emerging decision-making trends. Through supervised algorithms, it is possible to train models that indicate, for example, the likelihood of a given thesis being revised, challenged, or ignored by certain instances or regions. This monitoring is vital for preserving the integrity of the precedent system, as it allows not only early warning of the erosion of consolidated understandings but also the continuous calibration of judicial language based on its own decisional memory. For this process to be reliable, however, the databases' feed is crucial. Without adequate technical curation, artificial intelligence becomes blind and statistics become illusory. It is essential that decisions are correctly classified, that qualified precedents are clearly marked, and that there is an institutional protocol for recording relevant grounds. The data needs to be cleaned, updated, standardized, and enriched with context. It's not just about digitizing judgments: it's about necessary to transform decisions into structured language, with specific fields that allow their algorithmic interpretation without loss of legal density. This structure will allow us to filter relevant cases, distinguishratio decidendiofobiter dicta, and accurately map the cores of normative meaning that radiate from the precedents. Thus, the preservation of stare decisis in the age of complexity will not be guaranteed solely by formal declarations of binding force, but by the institutional capacity to systematically monitor, audit, and project legal coherence. Statistics and AI, in this sense, operate as instruments of lucidity: they reveal the structure behind discourse, the regularity behind exceptions, and the instability behind the appearance of uniformity. Law ceases to be a self-centered narrative and becomes a field of empirical observation and interpretative responsibility. The logic of structuring, statistical analysis, and predictive interpretation applied to case law and out-of-court settlements should be extended to public contracts and regulatory acts, whose regulatory effects are often broader and more lasting than specific court decisions. The creation of structured databases containing contractual clauses, performance conditions, addenda, legal opinions, and practical results allows artificial intelligence to detect abusive recurrences, strategic omissions, inconsistencies in interpretation, and asymmetries in treatment between different contracting parties in similar situations. In the regulatory field, the systematic organization of resolutions, instructions, ordinances, and decrees, with metadata on legal basis, issuing agencies, express motivation, and validity, enables analyses that reveal the degree of interpretative uniformity between federative entities and regulatory agencies. The statistics applied to this set become a tool for continuous constitutional auditing, capable of verifying whether normative acts comply with legal frameworks and align with the system of precedents, avoiding contradictions, normative redundancies, or regulatory gaps. When fed with technical rigor and processed by explainable AI, these collections become part of an integrated institutional intelligence, in which contracts and norms not only produce legal effects but also feed back into the state's normative memory, allowing public governance to learn from its own actions and anticipate recurring deviations 2.3. Artificial intelligence, traceability and prohibition of arbitrariness The application of artificial intelligence in public administration is a topic of growing importance. In this context, the relevance of this technology in systematizing and categorizing the reasons underlying the decisions of different agencies in similar situations stands out. This organizational capacity not only allows for the identification of inconsistencies but also helps clarify interpretative inconsistencies. Furthermore, systematization favors the promotion of institutional consistency, which is highly desirable. However, it is essential that the implementation of artificial intelligence in this area is guided by public and auditable criteria 8, respecting the constitutional principles in force. This guidance is especially important regarding the principles that guarantee legal certainty and adequate justification for administrative acts. Motivation, understood as the requirement of a rational basis, is closely related to the concept of traceability. An administrative act that presents adequate motivation is one whose reasons can be easily reconstructed, verified, and challenged. It is worth noting that this requirement of motivation is not limited to judicial decisions. It also extends to administrative sanctioning acts, binding opinions, regulatory resolutions, and agreements signed between public entities. In this sense, the organization of administrative jurisprudence in structured, improved databases. Powered by artificial intelligence and made publicly available, this represents an effective strategy. This approach not only ensures transparency but also establishes a model of administrative justice based on the coherence, rationality, and integrity of legal language. Finally, it is imperative that technological advances in the public sector be accompanied by a firm commitment to the values that underpin the democratic rule of law. The responsible integration of artificial intelligence can thus significantly contribute to a more efficient, fair, and transparent public administration. 2.4. Integrative hermeneutics of constitutional law to understanding: convergence between administrative and judicial jurisprudence through databases The constitutional right to understand the content of public decisions restricting fundamental rights requires a hermeneutics that views the set of decisions as a whole—that is, a normative system properly structured, organized, classified, and capable of in-depth research in the technological age. In this sense, this hermeneutics, regardless of the current it purports to designate, is based on an unavoidable contemporary assumption: viewing the decision in its comprehensive and organized normative context. It is impossible to ignore that this context is part of the age of complexity, as has been stated from the outset 9. Statistics, in its contemporary approach, transcends the mere measurement of quantitative phenomena. It establishes itself as a science that encompasses structure, inference, and decision-making, focusing on organizing information, identifying patterns, anticipating risks, and providing a rational basis for institutional choices. legal context, this function acquires crucial importance, proving to be a vital element for public rationality, consistency in decisions and the integrity of governance. Legal statistics are based on three fundamental pillars: first, the systematic and structured collection of relevant public data; second, the mathematical modeling of identifiable patterns in different contexts, ranging from regulatory to judicial; and finally, responsible inference, which must be auditable and publicly justifiable, regarding risks, trends, repetitions, and deviations. Thus, its object of study goes beyond numbers, encompassing institutional behavior, the language of decision-making, and the logic of institutions in uncertain situations. In this sense, statistics transform the legal database into a space for systemic observation, enabling the identification of asymmetries, the prediction of conflicts, and the rationalization of state action. The relationship between statistics, databases, and legal language is, therefore, structural in nature. Without reliable, organized, and auditable data, legitimate inferences cannot be made; similarly, without institutionalized statistics, databases become mere technical repositories, devoid of analytical value. Furthermore, without a standardized legal language, classifying, cross-referencing, and interpreting decisions becomes a challenge. Within the justice system, statistics perform four central functions. First, a diagnostic function, which seeks to identify interpretative patterns, areas of instability, inconsistencies in decisions, and unequal treatment in similar cases. The preventive function, in turn, anticipates the emergence of conflicts, legal risks, or argumentative distortions, based on historical data and institutional patterns. Next, the strategic function underpins the management of case provisioning, the prioritization of agendas, and the structuring of coherent public responses. Finally, the restorative function provides objective support for reviewing dysfunctional practices and correcting institutional biases, also encompassing the perspective of external oversight. For these reasons, it is essential that statistics be understood as a principle of democratic governance, especially in complex and sensitive legal environments. It strengthens the state's capacity for introspection, allowing it to review its structures and promote actions based on standards of coherence, efficiency, and equity. The application of this rationality in the justice system is imperative in times of complexity. To this end, courts, regulatory agencies, public prosecutors, audit courts, and internal control bodies must incorporate statistical tools guided by clear public purposes and ethical, auditable routines that are permanently aligned with the constitutional language. Thus, legal statistics should not be seen merely as an auxiliary technique, but as an epistemological foundation that sustains institutional integrity. It does not replace argumentation, but enhances it; it does not supplant the norm, but rather the structure; and it does not automate justice, but rather anchors it in evidence, memory, and public accountability. By translating legal data into analytical language, statistics ground justice as an expression of collective intelligence. 3. Metric Transparency in the Age of Algorithms 3.1. The role of statistics in the legal world and in improving the justice system It is important to note, from the outset, the conceptual difference between data and algorithms, although it is assumed that these concepts underlie the logic of this essay. The concepts taken fromArtificial Intelligence Risk Management Framework (AI RMF 1.0), prepared by the National Institute of Standards and Technology – NIST (2023), as well as the Regulation (EU) 2024/1689 of the European Parliament and of the Council, which deals with artificial intelligence within the European Union (EUROPEAN UNION, 2024). Both are based on essential premises inherent to digital governance 10. The conceptual distinction between data, metadata, and algorithms constitutes a structuring element in contemporary debates on artificial intelligence, automated governance, and digital regulation. This distinction is essential for the proper interpretation of the obligations imposed on institutions seeking to ensure fair and equal access, comprehensible reading, and informational protection in the ethical use of data within the Brazilian legal, economic, and communication space—especially in digital environments such as social media, where data processing reaches massive proportions and amplified effects. Data are digital records or representations—structured or unstructured—of any fact, act, occurrence, state, process, or event that can be captured and has relevance. Metadata, in turn, is data about the data, according to the context of its collection. In the European legal and technical context, it encompasses both raw data (such as the date and time of a purchase) and processed data (such as a user's consumption history). In the RFM model, data corresponds to the observable elements that feed the metrics: number of purchases made, date of the last transaction, and total amount spent. Algorithms, on the other hand, are finite sets of logical or mathematical rules and instructions used to process data, extract patterns, categorize subjects, or make automated decisions. An algorithm based on the RFM model must be explainable through predefined formulas, based on risk models contextualized by segment. From a regulatory perspective, European Regulation (EU) 2023/2854 classifies algorithms as operations on data that must comply with fundamental principles such as proportionality, non-discrimination, necessity, and transparency. This classification implies recognizing that algorithms are not immune to oversight, especially in contexts where they impact fundamental rights, access to essential services, or the classification of standards, agreements, and decisions that directly affect these rights. In the Brazilian context, the General Data Protection Law (LGPD – Law No. 13,709/2018) establishes fundamental guidelines for the processing of personal data, highlighting the principles of purpose, adequacy, necessity, free access, data quality, transparency, security, prevention, and non-discrimination. The LGPD also imposes obligations regarding the protection of confidentiality and information security, requiring both the controller and the processor to adopt effective technical and administrative measures to safeguard personal data against unauthorized access or incidents—whether accidental or unlawful—that may result in the destruction, loss, modification, improper communication, or dissemination of such information. The distinction between data, metadata, and algorithms, therefore, is not merely bureaucratic: it is a structural element for the ethical and normative governance of digital systems. Data constitutes the raw material; algorithms, the instruments of transformation. Protecting the integrity of the process requires oversight of both: the origin, classification, and use of data, as well as the criteria and impacts associated with algorithms. The structuring of documentation, rigorous data processing, and the auditability of digital systems, including algorithms, provide new paradigms for the legitimacy of public decisions. The consolidation and strengthening of precedents are connected to the right to understanding, which derives from a constitutional system integrated into a dynamic, self- critical, and regenerative institutional culture. This culture must not only defend itself but also constantly renew itself and engage in dialogue with the State. In this context, transformative compliance in companies also emerges, emerging as the link between the technical structure and the institutional essence, representing the ethical intelligence that guides artificial intelligence, the integrity that organizes data, and the trust that underpins predictability, with regulatory autonomy and a new perspective on the organization's identity. As I mentioned, the complexity of decision-making, the lack of transparency, and the difficulty in accessing state decisions and acts stem from multiple factors. The legal database lacks integration with statistics, as it is an intelligent tool that enables a sophisticated reading of institutional memory. It has become clear that statistics reveal patterns and deviations, allow for the critical interpretation of trends, hidden flaws, fissures, inequalities, asymmetries, and diagnoses regarding normative and decision-making implications. In the current context, the improvement of statistical tools shows trends toward integration with artificial intelligence, thus fulfilling extremely important functions in the analysis, diagnosis, and anticipation of scenarios and risks in the institutional decision- making architecture. In these new scenarios, AI considerably expands the scale and scope of statistical impact, and technological advances increasingly enable the identification of invisible and sophisticated patterns. Methodologies exist that allow for continuous revisions as evidence emerges or undergoes transformation. In any case, it should be noted that statistics and artificial intelligence do not replace human judgment, but constitute auxiliary instruments and have auditable and variable methodologies 11. 3.2. How algorithms impact and structure legal databases Regarding the concept of an algorithm in information technology, it's crucial to remember that it's a structured set of instructions designed to solve problems or perform tasks automatically. In the digital world, an algorithm operates like a recipe that guides computers in their decisions, based on data. Rather than adopting a random approach, the algorithm follows meticulously designed steps aimed at classifying, ordering, correlating, or predicting information. This dynamic proves crucial, for example, when an electronic legal system is able to identify analogous decisions, when a platform detects contractual risks, or even when a compliance program identifies inconsistencies in business operations. Although developed by technology experts, algorithms are not neutral; on the contrary, they reflect human choices about what should be valued, what can be disregarded, and which paths deserve to be prioritized. Therefore, their application in legal spheres requires a commitment to accountability, transparency, and oversight. When properly designed and audited, algorithms have the ability to organize vast volumes of data, reduce the incidence of errors, and increase the consistency of decisions. However, when they operate without proper oversight or with biased data, they risk perpetuating inequalities, creating legal vulnerabilities, and compromising institutional integrity. Algorithms currently constitute the dynamic axis that transforms legal databases into functional systems of institutional rationality. If the database is responsible for storing and organizing decisions, normative acts, contracts, and opinions, they are the algorithms that give form, intelligibility, and operability to this collection 12. Through them, it becomes possible to classify documents, extract linguistic and normative patterns, identify recurrences, assess argumentative coherence, and build inferences applicable to new cases or regulatory scenarios. In contemporary legal databases, algorithms perform a variety of structural functions, such as semantic indexing and hierarchical organization of content, where classification algorithms categorically organize decisions according to subject matter, legal basis, adjudicating body, cited case law, type of request or legal thesis, ensuring accurate information retrieval, even in massive and heterogeneous collections. Furthermore, detecting patterns and inconsistencies becomes a vital function, with clustering and anomaly detection algorithms facilitating the identification of inconsistencies between similar decisions, revealing areas of jurisprudential instability and locating interpretations outside the historical norm. Temporal traceability and predictive inference are also crucial, with time-series algorithms enabling the detection of decision-making seasonality, interpretative ruptures, and normative effects over time, which is essential for statistical inferences, resource allocation, and institutional impact simulations. Explainability and legal inference in artificial intelligence are equally relevant; in more advanced systems, algorithms become logical inference mechanisms, used to suggest arguments, reconstruct legal grounds, predict procedural outcomes, or recommend contractual clauses, with all of this functionality dependent on the integrity of the database and the ethical governance of the applied algorithm. Finally, filtering, cleaning, and anonymizing sensitive data through pre- processing algorithms is essential to eliminate duplication, correct inconsistencies, and ensure the anonymization of personal data before it is used for AI training or public analysis. As a result, legal databases are transformed into algorithmic environments, ceasing to be mere passive repositories and becoming dynamic infrastructures for inference, institutional memory, and public or corporate intelligence. Without algorithms, there is only a mass of documents; with their application, there is structure, meaning, criticality, and decision-making potential. However, this transformation is only legitimate if the algorithms are: explainable, so that one can understand how they perform classifications, recommendations, or exclusions; auditable, so that errors and biases can be corrected; and controllable, so that they do not replace human judgment but strengthen it with empirical evidence. 3.3. How statistics operate preliminarily in the construction of the algorithm Regarding the intersection between statistics and algorithms in the legal context, it is crucial it's important to emphasize that statistical reasoning serves as the foundation for building any algorithmic system. Initially, statistics play three crucial roles: first, it guides data selection and curation, defining which variables will be considered, which will be excluded, how they will be normalized, and how they will be distributed. This process is vital to avoid distortions that could compromise the integrity of analyses, such as the overrepresentation of irrelevant categories or the underrepresentation of vulnerable groups. In legal data environments, this implies a careful selection between case law, contracts, opinions, or regulations, which will serve as primary sources for algorithmic learning. Second, after defining the problem—be it predicting legal risks, classifying decisions, or identifying inconsistencies—statistics is responsible for mapping which interactions between variables should be modeled. This task can range from correlations and conditional probabilities to logistic regressions or other statistical models that will later be converted into algorithmic language. Thus, statistics establishes the inferential logic that will be adopted by the algorithm in question. Finally, it's worth noting that statistics also allows us to assess the adequacy of models in relation to the data type and the complexity of the proposed challenge— whether linear models, decision trees, classifiers, or probabilistic networks. Furthermore, it provides performance metrics, such as accuracy and sensitivity, that guide the initial calibration process, ensuring that the algorithm learns consistently, avoiding pitfalls such as overfitting or bias. In short, statistics is not limited to being a post-processing application of the algorithm; it is, in fact, the language that underpins its rationale. It defines the data to be used, the organizational logic, and the decision-making parameters. Without the statistical structure, the algorithm is reduced to mere code devoid of content: a mechanism devoid of criteria, a a structure lacking epistemology. Furthermore, artificial intelligence itself, in its multiple manifestations, can be used to create new algorithms, especially in systems involving deep learning, self-tuning, and evolutionary programming. This reality represents a significant epistemological transformation, as it challenges the traditional conception that only humans are capable of consciously and deliberately designing algorithmic logic. 3.4. Artificial intelligence in the construction of algorithms: when the system learns to design logic In the era of self-reflective artificial intelligence, computer systems transcend the mere execution of predetermined commands and enter a new stage of operational autonomy, in which they reconfigure their own algorithms based on iterative mechanisms of performance evaluation, environmental contextualization, and statistical debugging. Thus, a paradigmatic shift is observed: the algorithm, once conceived as a rigid structure, becomes a malleable and contingent entity, shaped by the confluence of statistical inference, continuous learning, and a constant flow of data. We are facing a new epistemology of automated decision-making, which profoundly alters the foundations of control, predictability, and accountability in both the public and private spheres. In the most sophisticated domains of machine learning, with particular emphasis on automated machine learning (AutoML), a structural shift in the role assigned to artificial intelligence is occurring. Instead of simply executing models previously designed by human agents, artificial intelligence now actively and autonomously intervenes in the engineering of inference systems. In these contexts, artificial intelligence performs functions such as careful variable selection, strategic model selection, statistical parameter optimization, and even the creation of new adaptive logic structures. This advancement is enabled by a triad of interdependent mechanisms that constitute the core of self-organized computational learning. The first of these mechanisms is meta-learning, a process through which artificial intelligence learns to learn—that is, it acquires the ability to identify, based on accumulated experience, which algorithms perform best in given contexts, dynamically adjusting to the peculiarities of each database. The second mechanism is AutoML itself, in which artificial systems are designed to design, test, and calibrate their own models, guided by statistical performance criteria and predictive efficiency metrics. Finally, Neural Architecture Search (NAS) emerges, a refinement modality in which neural networks are used to design other neural networks, optimizing the architecture of models through the intelligent reorganization of their layers and internal connections. This new level of algorithmic autonomy poses unprecedented challenges to traditional control and accountability structures, as it shifts the decision-making center from human engineering to systems that iteratively improve based on data and statistics. Therefore, it becomes imperative to rethink the normative and epistemological foundations of technological governance, otherwise the institutional anchoring of decision-making processes mediated by artificial intelligence will be compromised. In this scenario, the growing technical autonomy of artificial intelligence in building its own algorithms requires the formulation of new paradigms of control, responsibility, and traceability, capable of preserving the structuring principles of the rule of law, especially regarding accountability and technological governance. This evolution does not imply the abdication of human oversight or the weakening of transparency requirements. On the contrary, it intensifies the need for robust regulatory protocols that ensure the auditability of systems and the intelligibility of their automated decisions. It is against this backdrop that cutting-edge regulatory instruments, such as the European Union's AI Act—notably in its Articles 9, 17, and 25, which address risk management, internal governance systems, and continuous performance monitoring, respectively—and the NIST AI Risk Management Framework (2023), with emphasis on Section 3.1, establish guidelines that reaffirm the essential nature of rigorous documentation and algorithmic traceability mechanisms. These regulatory instruments recognize that, given the growing technical autonomy of artificial intelligence systems in building their own models, it is crucial to ensure the maintenance of audit trails that allow for the accurate and transparent reconstruction of the paths through which certain inferences, structures, or decisions were reached. Such audit trails should contain, in an accessible and technically validated format, information on the data used, the criteria for selecting and combining models, the adjusted parameters, and the testing methods employed, enabling external verification, regulatory oversight, and objective accountability. It is, in essence, about ensuring the reliability, validity and robustness of automated decisions, as required by the aforementioned frameworks, as an indispensable condition for its technical-legal legitimacy and the preservation of the structuring values of the Rule of Law 13. From a legal perspective, this new topography of artificial intelligence demands the implementation of permanent safeguards, including: continuous human curation, which ensures responsible monitoring of the critical phases of training, adjustment, and deployment of models; external and cross-validation systems, which allow independent verification of the consistency and legitimacy of the generated algorithms; and explainability mechanisms, designed to enable the logical reconstruction of inferences and decisions produced automatically. These requirements are not merely technical, but express constitutional demands of legality, motivation, and control, with a particular impact on the public and regulatory spheres. Ultimately, the use of artificial intelligence to build algorithmic structures cannot take place outside of a normative architecture anchored in public rationality, under penalty of erosion of institutional trust and the very legality of contemporary decision-making systems. This finding gains particular relevance when one considers that, although the General Data Protection Law (LGPD) and the main international regulatory frameworks explicitly refer to automated decisions as a legally sensitive category, the requirement for auditability must be expanded—and deepened—with regard to algorithms that structure legal databases, even if they are not directly linked to individual decisions. The reason is conceptual: such algorithms, although they do not make decisions, shape the decision space. They determine what will be indexed, grouped, highlighted, or interpreted as recurring or atypical. In this way, they silently shape the cognitive horizons of legal, regulatory, and corporate agents, influencing the very construction of normativity. In this sense, international reference standards, such as the European Union's AI Act (2024, art. 17 and Recitals 10 and 12), the UNESCO Recommendation on the Ethics of Artificial Intelligence (2021, arts. 35 to 41) and the NIST AI Risk Management Framework (2023), clearly establish that algorithmic systems intended for the structuring of institutional knowledge —even if they do not exercise decision-making power—must be traceable, auditable, and subject to continuous oversight, especially human oversight. This guideline applies with particular acuity to legal databases, which classify case law, organize contracts, create decision-making categories, and consolidate interpretative foundations used in judicial, administrative, and regulatory settings. Additionally, it is worth noting that the OECD Recommendation on Artificial Intelligence (2019, revised in 2024) establishes the guideline that algorithmic systems designed to organize data affecting the public sphere must comply with requirements of explainability, traceability, and responsible governance, even if they do not make final or binding decisions on individuals. The normative concern transcends the specific result of automated inferences, encompassing the structural configuration of the interpretative field in which such systems operate. Indeed, when automated computational logic is mobilized to structure institutional memory through classificatory filters, informational hierarchies, and taxonomic schemes applicable to legal data—contracts, precedents, normative foundations —it directly impacts the formation of public rationality. And, whenever institutional rationality is produced, as a corollary of legality and administrative morality, the duty to provide reasoning, the possibility of critical reconstruction, and the presence of institutional mechanisms of control and accountability are imposed. It is therefore a question of ensuring that artificial intelligence systems do not operate in opaque zones of informational power, but are subject to a regime of transparency compatible with the structuring principles of the contemporary rule of law. Thus, legal databases should be understood as cognitive infrastructures with a high normative density, whose governance demands transparency and auditability criteria comparable to those applicable to automated decisions. Algorithmic accountability, at this level, transcends mere access to information and is linked to the requirement to understand, review, and justify the logical structures that guide legal production and shape institutional action. Ultimately, it is about ensuring that public rationality remains anchored in accessible, verifiable foundations that are compatible with the tenets of the Democratic Rule of Law. 4. From Linear Thinking to Systemic Intelligence Reflecting on the world of artificial intelligence and structured databases is a question that goes beyond the linear logic we typically employ. In this context, we encounter dynamic systems characterized by constant feedback and an inherent unpredictability. Decision-making, whether in the legal, political, economic, or administrative spheres, must therefore be guided by three fundamental principles. These principles include interdependence between the various elements involved, a solid statistical foundation supported by artificial intelligence tools, and participation in continuous cycles that encompass data, inferences, learning, and endless updating. Edgar Morin reminds us that only a way of thinking that considers the interrelationships of elements and the contradictions that arise from them will be able to capture the essence of reality. From this perspective, artificial intelligence is not limited to being an isolated technology; it actually represents a profound reconfiguration of knowledge and power within an interconnected network. This understanding must be enriched by the recognition that statistics, in this context, presents itself not simply as a set of numbers, but as an intelligence that reveals patterns and trends crucial to our understanding of the world. 4.1. Stress as a Structural Matter The intersection between transparency and privacy, as well as between predictability and the speed of change, requires us to recognize the importance of treating these elements not as opposites, but rather as integral parts of a complex system. Complex thinking, by its very nature, does not seek to promote a simplistic synthesis; rather, it invites us to embrace and live with the ambivalence that characterizes these relationships. In this context, artificial intelligence must be governed by parameters that go beyond simple standards. It is essential that we consider epistemic, ethical, and technical dimensions, which are not intended to eliminate dissent, but rather to create an environment in which this dissent can manifest itself in an auditable and controllable manner. This approach is fundamental to guaranteeing the legitimacy of the processes involved and ensuring a plurality of voices. Ultimately, the goal is to build a space where complexity is not only tolerated but celebrated. This space should allow for the coexistence of different perspectives, thus enriching our understanding of the dynamics at work. By doing so, we can foster a deeper and more comprehensive understanding of the issues that surround us. 4.2. The Decision as a Composite Object In the current context of decisions influenced by artificial intelligence, it is crucial to emphasize that the act of decision-making goes beyond simply choosing between normative alternatives. At its core, it is a complex epistemological process that requires consideration of four main elements. These elements include a rigorous logical path, the development of robust structural documentation, the provision of accessible public explanations, and the definition of shared responsibility among the different agents involved. I call this approach composite decision-making, in which data, algorithms, context, and values interact to form a singularly complex operational unit. This concept not only reflects modern demands for governance and transparency but also highlights the importance of an appropriate regulatory framework to regulate the use of emerging technologies in the decision-making process. It is crucial to ensure that the decisions made are not only effective but also ethical and fair. Thus, the integration of these components becomes essential to strengthening public trust in institutions operating under this new decision-making logic. Only through this approach can we envision a future in which technology and ethics work hand in hand, contributing to a more equitable and well-informed society. 4.3. Ethics as a Form of Structure In reflecting on the intersection between ethics and technology within complex thinking, it is crucial to emphasize that ethics should not be understood as a mere adornment or accessory to technology. On the contrary, ethics emerges as the condition of legitimacy that underpins the entire decision-making process. In this sense, it is essential that the decision-making structure respect three essential criteria: first, technical validity, which ensures the coherence and effectiveness of the actions performed; second, epistemic traceability, which provides verification and transparency of the paths that led to a decision. certain conclusion; last but not least, ethical justification, which ensures that decisions are in accordance with moral and social precepts. In such a context, complexity ethics proposes an approach that demands continuous reflexivity, articulated with a process of systematic self-correction. This approach not only promotes plural participation but also emphasizes the importance of attentively listening to marginalized voices, errors, and the excluded. Thus, the challenge is to build a decision-making space that, in addition to respecting, seeks to incorporate the diversity of perspectives and experiences. It is essential that this space recognize the importance of maintaining a dialogue that transcends the conventional limits of technology and rationality, allowing for a more harmonious coexistence between these diverse elements. 4.4. The Culture of Integration and the Right to Understanding The need to cultivate an institutional culture focused on integration becomes increasingly pressing in the face of contemporary transformations. Harmonious alignment is crucial among the various elements that constitute the complex social web, encompassing the integration of data and rights, algorithms and values, statistics and narratives, as well as systems and individuals. This interconnection goes far beyond the simple right to information; it is the right to understanding. Each individual must have the ability to decipher the mechanisms that include or exclude them, that anticipate or govern them, especially in a context where systems based on artificial intelligence, judicial decisions, actions by public authorities, regulations, statistical analyses, databases, and democratic processes are applied. In this scenario, promoting and strengthening an integrative culture should not be seen simply as an option, but as an ethical imperative. This dynamic is fundamental to ensuring harmonious and respectful coexistence among the diverse subjects and multiple instances that interact in an environment of constant technological evolution. Therefore, building a space where transparency and accountability become essential pillars is a challenge that cannot be postponed. This task requires the collaboration of all social actors, thus creating an environment conducive to dialogue and mutual understanding. This space for exchange is vital for the consolidation of a future that not only respects human dignity but also affirms the fundamental rights of every individual. The pursuit of this integration is a decisive step so that we can collectively move towards a more fair and inclusive scenario. 5. The Culture of Precedents as an Infrastructure for Rational, Traceable, and Coherent Decision- Making Regarding the implementation of decision-making mechanisms that meet rigorous traceability and transparency criteria, seamlessly integrating with artificial intelligence and grounded in meticulously structured databases, it is imperative to recognize that such an endeavor is hampered by the pressing need to consolidate an institutional culture focused on precedents. This culture, which presents itself as an essential pillar, cannot be established by merely imposing norms or by isolated case law decisions; on the contrary, it requires a true epistemological and pedagogical revolution in the education, updating, and training of legal professionals. Although theoretical works addressing the topic of precedents are highly sophisticated and eruditional, it must be stated that they are insufficient if the cognitive and symbolic structure of jurists does not undergo a significant transformation. The lack of a technical, methodical, and philosophical understanding of the precedent system not only hinders its practical assimilation but also condemns it to superficiality or manipulation in the service of momentary interests. In this sense, building a legal environment that values and implements precedents requires a deep and sustained commitment that transcends the mere adoption of practices and is rooted in the institutional culture of law. 5.1. Systemic Cultural Insertion The integration of precedent culture into the Brazilian legal framework is an extremely important issue, requiring in-depth and comprehensive reflection that goes beyond the superficiality of the debate. This integration should not be approached in isolation, but rather should manifest itself in a structural and systematic manner, fostering the emergence of a new educational paradigm. To this end, this topic must be mandatory in law school curricula, with clear guidelines defined by the Ministry of Education. This step is crucial to ensuring robust and cross-disciplinary training, capable of encompassing the essence of the phenomenon of precedent. Furthermore, it is essential that the ongoing and specialized training of judges, public defenders, members of the Public Prosecutor's Office, and lawyers, both public and private, prioritize the culture of precedents. This training should be especially considered in educational institutions focused on the judiciary, accounting schools, and centers of legal excellence, which play a crucial role in preparing legal practitioners. Furthermore, postgraduate programs and core disciplines that comprise legal education, including areas such as constitutional law, procedural law, general legal theory, and the various branches of administrative, criminal, civil, tax, and environmental law, must incorporate the precedent approach as a central axis for reflection and study. Finally, it is vital that the culture of precedents be treated as a transdisciplinary discipline, fostering the integration of multiple areas of knowledge. It is necessary to encompass aspects such as argumentative logic, decision theory, legal statistics, judicial ethics, hermeneutic theory, and the fundamentals of artificial intelligence applicable to law. This articulation will create a network of knowledge, enriching contemporary legal practice. Therefore, adopting this model will provide a more solid and coherent education, in addition to encouraging a legal practice that values precedent decisions, ensuring greater legal certainty and predictability in social relations. 5.2. Precedent as a Framework and not as an Isolated Norm Regarding the relevance of precedent in the contemporary legal context, it is important to emphasize that it is not limited to a mere decision-making norm of the past, but rather reveals itself as a dynamic structure of institutional articulation, capable of promoting systemic predictability and rational social control of decisions issued by the Judiciary. Thus, precedent emerges as a shared language, constituting the foundation for institutional learning within the judiciary. It is, therefore, the grammar that sustains intersubjective rationality within the legal system. Without proper understanding and application of this grammar, the very use of artificial intelligence in the legal field could result in an unstable, incoherent, and, therefore, unfair system. This is because predictive models, databases, and traceability tools will be subject to decisions that, by their nature, may be ad hoc, contradictory, opaque, or even arbitrary. In this sense, the construction of a A solid and reliable legal framework depends on strict adherence to precedents, which ultimately confer stability and legitimacy to the jurisdictional act, thus promoting an environment of trust and legal certainty that are essential for harmonious social coexistence. 5.3. Precedent Culture as the Foundation of Complex Justice The importance of a culture of precedents in contemporary law deserves to be emphasized, as its adoption proves essential for building a justice system that aims not only to be efficient but also ethical and accessible. It is crucial to understand that judicial precedents form the basis for the development of consistent and predictable decisions, which goes beyond a mere normative whim. In fact, they are an indispensable condition for the consolidation of a fully functioning democratic state governed by the rule of law. The absence of a robust precedent-setting culture undermines society's trust in institutions, weakening the pillars of equal treatment and predictability in judicial decisions. On the other hand, adopting this culture allows the legal system to transition seamlessly between tradition and innovation. This dynamic is crucial to enabling interaction with emerging technologies, such as artificial intelligence and data analytics models, without compromising the fundamental principles that guide legal practice. Furthermore, it is essential that the culture of precedents be seen as a symbolic infrastructure that not only supports the law but also projects it into the future. This perspective ensures that justice is aligned with democratic values and the fundamental rights enshrined in the Constitution. Therefore, building a legal framework that values predictability and transparency in judicial decisions is a decisive step toward building a more just and equitable society. In this context, the articulation between the tradition of precedents and technological innovation must occur harmoniously, always respecting the principles of due process and ethics that should guide all judicial deliberations. 6. Public Data Infrastructure, Interinstitutional Agreements and National Artificial Intelligence Culture The upcoming decision-making transformation, driven by innovations in artificial intelligence, statistics, and structured database management, demands significant care. For this change to occur effectively, it is essential to create a robust institutional and intersectoral architecture, which requires not only substantial public investment but also effective collaboration between the government, universities, private institutions, oversight bodies, and civil society organizations. This issue transcends mere technical aspects; it constitutes an essential public policy, which seeks to build a new national ecosystem focused on rational decision- making. In this scenario, inter-institutional cooperation must be valued, as true transformation depends on the capacity for dialogue and the integration of diverse knowledge and experiences. This will enable the construction of a future in which decisions are based on solid data and careful analysis. Finally, it's vital that there be a collective commitment that translates into concrete actions, not just mere promises. Only then will Brazil be able to reap the rewards of this new era, marked by the effective use of data and artificial intelligence. 6.1. Education as a Pillar of Algorithmic Sovereignty Regarding our country's information sovereignty, it is essential to emphasize that the ability to develop predictive models, create evidence-based public policies, and protect our own inference criteria is inextricably linked to an educational revolution grounded in data science and artificial intelligence. Therefore, there is a need to promote curricular inclusion that addresses disciplines such as statistics, data science, and artificial intelligence in courses related to the legal, administrative, economic, and social fields. Furthermore, it is essential to encourage graduate studies and applied research, focusing on the analysis of public data, legal information banks, digital governance platforms, and algorithmic models that support decision-making. Likewise, funding and prioritizing transdisciplinary research lines at the national level are essential. essential. These lines should integrate the fields of law, computing, ethics, political science, sociology, and computational linguistics. Therefore, it cannot be considered an exaggeration to state that the construction of this educational framework is a sine qua non condition for advancing the strengthening of the State's informational autonomy. This autonomy, in turn, is crucial to ensuring more efficient public management aligned with society's contemporary demands. 6.2. Public Agreements and Shared Data Governance Regarding the importance of interinstitutional agreements in strengthening the educational foundation, it is crucial to emphasize the importance of partnerships between public and private entities. These partnerships are crucial tools for accelerating the development of structured, integrated, and reliable databases. To this end, the policy to be developed must encompass several interconnected aspects, aiming to achieve effective transformation in the education sector. First, a synergistic integration between judicial case law, administrative precedents, and judicial and extrajudicial agreements must be promoted. This integration will facilitate an analytical approach to normative and factual interconnections, enabling a deeper understanding of the dynamics involved. Simultaneously, the creation of public platforms is crucial to ensuring the traceability of administrative acts, public contracts, bids, and digital services. This initiative not only facilitates the monitoring of government actions but also contributes to the democratization of social control. Furthermore, it is essential to encourage partnerships with the private sector and universities, aiming to develop open, auditable, and interoperable data platforms. This transparency and accessibility of information are essential for building a more efficient and participatory education system. Another relevant aspect is strengthening the investigative capacity of oversight and control bodies, which must be guaranteed through facilitated access to relevant data. Such information is essential for preventing fraud and combating mismanagement. Finally, it is necessary to address the challenge posed by the underground market for parallel databases. To this end, a data policy based on principles of legality, ethics, transparency, and equity must be established, thus ensuring integrity and accountability in the actions undertaken. By articulating these guidelines, a significant advance in public governance, promoting a more integral and responsible educational environment, which will undoubtedly benefit society as a whole. 6.3. Data as Democratic Infrastructure The growing relevance of data in public administration deserves in-depth reflection, since, in addition to being considered a technical resource, they play the role of fundamental democratic infrastructure. Their importance is evident in the creation of an essential link between social oversight and effective citizen participation. The systematic documentation of administrative information and decisions made is crucial for holding institutions accountable, in addition to being a determining factor in strengthening public trust. In a contemporary scenario characterized by the rise of artificial intelligence, data quality goes beyond a simple representation of reality. Data becomes an active agent in the construction of institutional reality, shaping the contours of the justice we seek to achieve. In this context, data management is a fundamental pillar for promoting transparency and accountability. Therefore, it is essential that institutions adopt an ethical commitment to the handling and use of this data. Therefore, it is necessary to broaden the reflection on the mechanisms that guarantee the integrity and veracity of the information collected. Only through this constant vigilance will it be possible to ensure that public administration meets the precepts of a truly democratic society, where access to information and institutional accountability are core values. Conclusion: A new decision-making architecture The emergence of a new decision-making framework stands out for its systemic, transparent, interdisciplinary, and, above all, traceable nature. It is crucial to understand that this framework is based on robust pillars, such as auditable artificial intelligence, the ethical application of statistics, and interoperability between structured databases. The cult of precedents also presents itself as an essential foundation of rationality in the decision- making process. However, it is important to emphasize that this architecture is not restricted to a technical innovation; it is a civilizational challenge that requires a new ethical and cultural approach. The expansion of forecasting and control tools, which is achieved through algorithms, predictive models, and statistical analysis, invokes a new ethos of responsibility that cannot be ignored. In this context, transparency emerges as an essential value, configuring itself as the infrastructure of legitimacy. This transparency must be understood in its entirety: it must be documented, comparable, legible, actionable, and robust, as advocated by the framework.CLeAR Documentation Framework 14. Documenting therefore reveals itself as synonymous with accountability, active listening, and humanization of the machine, becoming an imperative in this new algorithmic rationality. It is also essential to consider that the Brazilian legal system, in particular, faces resistance to adopting the culture of precedents, which is still seen as mere theory, lacking effective practical substance. To achieve sustainable predictability and institutional integrity, this approach must be included in academic curricula, MEC programs, and the training of judges. Furthermore, it is urgent to strengthen structural partnerships between universities and the public and private sectors, with the goal of building large, integrated databases that accurately feed the State's decision-making systems. This movement must be realized both in the educational sphere, through the insertion of relevant content in the curricula and investments in postgraduate studies, and in institutional practice, promoting interoperability between administrative decisions, judicial and extrajudicial. Effective social control over contracts, bids, and public acts is also necessary. In this scenario, the concept of transformative compliance emerges as a fundamental element. This concept transcends mere observance of standards, proposing, in fact, a cultural reconfiguration of institutions. Among its principles are internal listening, ethical empathy, symbolic self-regulation, and the capacity for continuous transformation. Structuring documentation, rigorous data processing, auditability of algorithms, and the legitimacy of precedents will only make sense if embedded within a dynamic, self- critical, and regenerative institutional culture. This culture must not only defend itself but also constantly renew itself. Therefore, transformative compliance emerges as the link between the technical structure and the institutional essence, representing the ethical intelligence that guides artificial intelligence, the integrity that organizes data, and the trust that underpins predictability. We are, therefore, on the verge of a historic inflection point. Justice, public administration, and organizations will be compelled to operate with increased intelligence, continuous documentation, and connected accountability. The new decision-making architecture, far from representing merely a technological advancement, is, above all, a cultural transformation that requires a continuous commitment to evolution and innovation.   by: Fabio Medina Osório 1. References ARRIETA, Alejandro Barredo et al. Explainable Artificial Intelligence (XAI): concepts, taxonomies, opportunities and challenges toward responsible AI.Information Fusion, v. 58, p. 82–115, 2020. DOI:https://doi.org/10.1016/j.inffus.2019.12.012 . Accessed on: May 14, 2025. BRAZIL.Constitution of the Federative Republic of Brazil of 1988. Brasilia, DF: Federal Senate, 1988. BRAZIL.Law No. 13,105, of March 16, 2015. Code of Civil Procedure.Official Gazette of the Union: section 1, Brasília, DF, March 17, 2015. BRAZIL.Law No. 13,709, of August 14, 2018. General Personal Data Protection Law (LGPD).Official Gazette of the Union: section 1, Brasília, DF, August 15, 2018. CHMIELINSKI, Kasia et al. The CLeAR Documentation Framework for AI Transparency: recommendations for practitioners and context for policymakers. Cambridge, MA: Shorenstein Center on Media, Politics and Public Policy, Harvard Kennedy School, 2024. Available at: https:// shorensteincenter.org/clear-documentation-framework-ai-transparencyrecommendations- practitioners-context-policymakers/ . Accessed on: June 1, 2025. EUROSTAT.European Statistics Code of Practice. Luxembourg: European Statistical System, 2017. Available at: https://ec.europa.eu/eurostat/documents/ 4031688/8971242/KS-02-18-142-PT-N.pdf . Accessed on: May 28, 2025. INTERNATIONAL MONETARY FUND – IMF.Data Quality Assessment Framework (DQAF). Washington, DC: IMF, 2012. Available at:https://dsbb.imf.org/dqrs . Accessed on: May 28, 2025. KERDVIBULVECH, Chutisant. Big data and AI-driven evidence analysis: a global perspective on citation trends, accessibility, and future research in legal applications.Journal of Big Data, v. 11, n. 180, 2024. DOI:https://doi.org/10.1186/s40537-024-01046-w . Accessed on: May 14, 2025. KÜÇÜK, Dilek; CAN, Fazli.Computational law: datasets, benchmarks, and ontologies. arXiv preprint, arXiv:2503.04305, 2025. Available at:https://arxiv.org/abs/2503.04305 . Accessed on: June 1, 2025. MORIN, Edgar.Method 6: Ethics. Barcelona: Editorial Seix Barral, 2015. MORIN, Edgar.Introduction to complex thinking. Translated by Marcelo Pakman. 8th reprint. Barcelona: Editorial Gedisa, 2005. MORIN, Edgar.The head is good: rethinking the reform, reforming the thinking. Translated by Paula Mahler. 1st ed. 5. reprint. Buenos Aires: New Vision, 2002. NIST.AI Risk Management Framework. Gaithersburg: National Institute of Standards and Technology (NIST), 2023. Available at:https://www.nist.gov/itl/ai-risk- managementframework . Accessed on: May 20, 2025. OECD.Recommendation of the Council on Artificial Intelligence. 2019. Revised in 2024. Available at: https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0449 . Accessed on: May 20, 2025. ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT – OECD. Recommendation of the Council on Enhanced Access to and Sharing of Data. Paris: OECD, 2019. Available at:https://legalinstruments.oecd.org/en/instruments/OECD- LEGAL-0463 . Accessed on: May 28, 2025. PADIU, Bogdan; IACOB, Radu; REBEDEA, Traian; DASCALU, Mihai.To what extent have LLMs reshaped the legal domain so far? A scoping literature review. Information, Basel, v. 15, n. 11, art. 662, 2024. Available at:https://doi.org/10.3390/info15110662 . Accessed on: June 1, 2025. EUROPEAN UNION.AI Act – Artificial Intelligence Act. Brussels: European Parliament, 2024. Available at:https://eur-lex.europa.eu . Accessed on: May 20, 2025. EUROPEAN UNION.Regulation (EC) No 223/2009 of the European Parliament and of the Council of 11 March 2009 on European statistics.Official Journal of the European Union, L 87, p. 164–173, March 31, 2009. Available at:https://eur-lex.europa.eu/legalcontent/PT/ TXT/?uri=CELEX:32009R0223 . Accessed on: May 28, 2025. UNESCO.Recommendation on the Ethics of Artificial Intelligence. Paris: UNESCO, 2021. Available at:https://unesdoc.unesco.org . Accessed on: May 20, 2025. UNITED NATIONS.Fundamental Principles of Official Statistics. New York: United Nations StatisticsDivision, 2014.Available at: https://unstats.un.org/unsd/dnss/gp/ fundprinciples.aspx . Accessed on: May 28, 2025. Footnotes 1. Full partner of Medina Osório Advogados. Former Minister of the Attorney General's Office. PhD in Administrative Law from the Complutense University of Madrid (Spain). Master's in Public Law from the Federal University of Rio Grande do Sul (UFRGS). Chairman of the Special Committee on Administrative Sanctioning Law of the Federal Council of the Brazilian Bar Association (2019–2022, 2022–2025, and 2025– ongoing). President of the International Institute for State Law Studies (IIED). Associate professor in the master's and doctoral programs at the Federal University of Rio Grande do Sul School of Law. 2. In this context, the following constitutional provisions stand out: art. 5, items X, XII, XIV and XXXIII; art. 37, § 3, item II; art. 93, item IX; art. 102, § 2; and art. 103-B, § 3, all from the Constitution of the Federative Republic of Brazil. 3. Regarding the theory of precedents, excellent work has been produced in Brazil. See: FUX, Luiz; MENDES, Aluisio Gonçalves de Castro; FUX, Rodrigo. Brazilian precedent system: main characteristics and challenges. Electronic Journal of Procedural Law – REDP, Rio de Janeiro, v. 23, n. 3, p. 221– 237, Sep./Dec. 2022. Available at: https://www.redp.uerj.br. Accessed on: May 14, 2025.; TAUK, Caroline Somesom; SALOMÃO, Luis Felipe. Artificial intelligence in the Brazilian Judiciary: an empirical study on algorithms and discrimination.Diké – Journal of the Graduate Program in Law at the State University of Santa Cruz, Ilhéus, v. 22, n. 23, p. 2–32, Jan./Jun. 2023. Available at: https://periodicos.uesc.br/index.php/dike/article/download/3819/2419/ . Accessed on: May 14, 2025.; DIDIER JR., Fredie. Brazilian system of mandatory judicial precedents and the institutional duties of the courts: uniformity, stability, integrity and coherence of jurisprudence.Magazine of the Public Prosecutor's Office of the State of Rio de Janeiro, Rio de Janeiro, n. 64, p. 135–147, Apr./Jun. 2017.; and MARINONI, Luiz Guilherme.Mandatory precedents. 7th ed. rev., updated and expanded. São Paulo: Thomson Reuters Brazil, Courts Review, 2022. 4. Incidentally, this concept is consistent with the principles of purpose, transparency, and active accountability in the processing of personal data, as provided for in Article 6, items I, VI, and X, of the General Data Protection Law. Furthermore, it aligns with the guarantees granted to the data subject regarding the right to an explanation of automated decisions and to clear, facilitated, structured, and intelligible access to their personal data, as per Articles 9, 18, and 20 of the same law. These guidelines are also paralleled in Articles 15 to 22 of the European Union's General Data Protection Regulation (GDPR), which require a legal basis, a legitimate purpose, and verifiable documentation, ensuring the data subject the right to access, review, contest, and understand automated decisions. 5. To better understand the growing functional complexity of contemporary law, see the article by KÜÇÜK, Dilek; CAN, Fazli.Computational law: datasets, benchmarks, and ontologies. arXiv preprint, arXiv:2503.04305, 2025. Available at:https://arxiv.org/abs/2503.04305 . Accessed on: May 25, 2025. This work demonstrates the possibility of systematizing technical-computational resources, with the aim of systematizing and optimizing the structuring of contemporary legal knowledge, including datasets, benchmarksand ontologies. Legal ontologies are authentic conceptual maps that influence machine programming for reading decisions to be classified and tracked, which impacts document organization itself. Datasets are the legal databases themselves, enabling intelligent analysis on large volumes of mass-produced data. Benchmarks are standardized tests that enable the auditability of artificial intelligence. 6. Check out the relevant work by PADIU, Bogdan; IACOB, Radu; REBEDEA, Traian; DASCALU, Mihai. To what extent have LLMs reshaped the legal domain so far? A scoping literature review. Information, Basel, v. 15, n. 11, art. 662, 2024. Available at:https://doi.org/10.3390/info15110662 . Accessed on: June 1, 2025. In this work, the authors analyze artificial intelligence models trained to evaluate large volumes of texts. To function properly, these models require normative databases and real databases with accurate document classifications. Among the aspects mentioned in the text, the document structuring of the databases stands out for the proper functioning of artificial intelligence, emphasizing the structured classification of normative acts and decisions. In the case of decisions, these must be classified according to certain standards that allow for accurate indexing, according to transparent semantic values, in order to ensure measurability and traceability. It is important to assess the institutional and epistemological quality of legal data based on the programming of the algorithms used to structure the databases. 7. KERDVIBULVECH, Chutisant.Big data and AI-driven evidence analysis: a global perspective on citation trends, accessibility, and future research in legal applications.Journal of Big Data, v. 11, n. 180, 2024. DOI: https://doi.org/ 10.1186/s40537-024-01046-w . Accessed on: May 14, 2025. 8. In this regard, we cannot forget the provisions of Article 20 of the General Data Protection Law. In this regard, see the article by ARRIETA, Alejandro Barredo et al.Explainable Artificial Intelligence (XAI): Concepts, taxonomies, opportunities and challenges toward responsible AI.Information Fusion, v. 58, p. 82–115, 2020. DOI: https:// doi.org/10.1016/j.inffus.2019.12.012. Accessed on: May 14, 2025., in this highly relevant work, the authors highlight the essential nature of artificial intelligence audit parameters connected to the explainability of the conclusions adopted, based on consistency, fidelity, usefulness for the recipient, stability (without arbitrary variations), and methodological transparency. “To summarize the most commonly used nomenclature, in this section we clarify the distinction and similarities among terms often used in the ethical AI and XAI communities. • Understandability (or equivalently, intelligibility) denotes the characteristic of a model to make a human understand its function – how the model works – without any need for explaining its internal structure or the algorithmic means by which the model processes data internally [18]. algorithm to represent its learned knowledge in a human understandable fashion [19, 20, 21]. This notion of model comprehensibility stems from the postulates of Michalski [22], which stated that “the results of computer induction should be symbolic descriptions of given entities, semantically and structurally similar to those a human expert might produce observing the same entities. Components of these descriptions should be comprehensible as single 'chunks' of information, directly interpretable in natural language, and should relate quantitative and qualitative concepts in an integrated fashion.” Given its difficult quantification, comprehensibility is normally tied to the evaluation of the model complexity [17]. • Interpretability: it is defined as the ability to explain or to provide the meaning in understandable terms to a human. • Explainability: explainability is associated with the notion of explanation as an interface between humans and a decision maker that is, at the same time, both an accurate proxy of the decision maker and comprehensible to humans [17]. • Transparency: a model is considered to be transparent if by itself it is understandable. Since a model can feature different degrees of understandability, transparent models in Section 3 are divided into three categories: simulatable models, decomposable models and algorithmically transparent models [5].” 9. MORIN, Edgar.Method 6. Ethics.Barcelona: Editorial Seix Barral, 2015; MORIN, Edgar.Introduction to complex thinking. Translated by Marcelo Pakman. 8th reprint. Barcelona: Editorial Gedisa, 2005; and MORIN, Edgar.It's a good job: Rethinking the reform. Reform your thinking. 1st ed. 5th reprint. Buenos Aires: Nueva Visión, 2002. Translated by Paula Mahler. It is no coincidence that Morin proposes education as an essential pillar for ethical transformation in the cognitive and pluralistic sphere, enabling individuals to better deal with uncertainty and doubt. Morin is a reference in complex institutional listening. In this sense, he emphasizes the importance of a language that allows for an ever-increasing understanding of its recipients. Complex thinking must integrate the whole and its parts, and in this regard, the decision-making phenomenon cannot be understood, if we interpret this concept in the field of law, without the technological dimension that connects publicity, transparency, the duty to substantiate decisions, and their systematization, structuring, and technological organization in databases accessible to society. 10. EUROPEAN UNION.Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 on Artificial Intelligence and amending Regulations (EU) 2022/2065 and (EU) 2022/1925 and Directive (EU) 2020/1828. Official Journal of the European Union, L 168, p. 1–254, 12 June 2024. Available at: https://eur- lex.europa.eu/legal-content/PT/TXT/?uri=OJ:L:2024:168:TOC . Accessed on: 1 June. 2025. AND NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY (NIST). Artificial Intelligence Risk Management Framework (AI RMF 1.0). Gaithersburg, MD: US Department of Commerce, Jan. 2023. NIST.AI.100-1. Available at: https:// doi.org/10.6028/NIST.AI.100-1. 11. In the international context, there are standards that regulate the use of statistics. See the following documents: UNITED NATIONS.Fundamental Principles of Official Statistics. New York: United Nations Statistics Division, 2014. Available at:https://unstats.un.org/unsd/dnss/gp/fundprinciples.aspx . Accessed on: May 28, 2025; EUROPEAN UNION.Regulation (EC) No 223/2009 of the European Parliament and of the Council of 11 March 2009 on European statistics. Official Journal of the European Union, L 87, p. 164–173, 31 March 2009. Available at:https:// eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:32009R0223 . Accessed on: May 28, 2025; EUROSTAT. European Statistics Code of Practice. Luxembourg: European Statistical System, 2017. Available at:https:// ec.europa.eu/eurostat/documents/4031688/8971242/KS-02-18-142-PT-N.pdf . Accessed on: May 28, 2025; ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT – OECD. 12. Recommendation of the Council on Enhanced Access to and Sharing of Data. Paris: OECD, 2019. Available at: https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0463 . Accessed on: May 28, 2025; INTERNATIONAL MONETARY FUND – IMF.Data Quality Assessment Framework (DQAF). Washington, DC: IMF, 2012. Available at: https://dsbb.imf.org/dqrs. Accessed on: May 28, 2025. In this sense, one can take as an example the obligation to protect the confidentiality of statistical data and the integrity of sources, which is highlighted in Article 5, §1, letter "e", of Regulation (EC) No. 223/2009, which establishes that European statistics must respect “statistical confidentiality” as a fundamental principle. Convergently, Principle 6 of Fundamental Principles of Official Statisticsof the UN determines that individual data collected for statistical purposes must be strictly protected and used exclusively for those purposes. In this sense, theEuropean Statistics Code of Practiceestablishes "statistical confidentiality" as one of its 16 principles, requiring that informants' data be protected from unauthorized access. These provisions demonstrate an international normative consensus that the integrity and protection of information are fundamental conditions for public trust in statistical systems. 13. Regarding the auditability of multiple artificial intelligence systems, and here I understand that the concept applies to legal databases, it is essential to consult the Artificial Intelligence Risk Management Framework (AI RMF 1.0) document, which was prepared by the National Institute of Standards and Technology (NIST), an agency affiliated with the United States Department of Commerce, and officially published in January 2023. It is an internationally recognized technical reference, the product of a multi- stakeholder public consultation, peer-reviewed, and inter-institutional scientific validation. This document proposed as a paradigm a framework guiding good practices in risk management for artificial intelligence systems across various public and private sectors in the United States and globally. Its official reference number is NIST.AI.100-1. The main objective of this framework is to provide international credibility to artificial intelligence systems, ensuring they have methodological pillars that confer safety, reliability, and accountability in their purposes and functions. To this end, this international framework promotes risk management and a scientifically based and structured framework to mitigate these risks. 14. The work CHMIELINSKI, Kasia et al.The CLeAR Documentation Framework for AI Transparency: recommendations for practitioners and context for policymakers. Cambridge, MA: Shorenstein Center on Media, Politics and Public Policy, Harvard Kennedy School, 2024. Available at:https://shorensteincenter.org/ cleardocumentation-framework-ai-transparency-recommendations-practitioners-context-policymakers/ . Accessed on: June 1, 2025 — is a methodological tool developed by researchers at the Shorenstein Center at the Harvard Kennedy School to validate transparent and auditable artificial intelligence systems and, consequently, reliable databases. To this end, this framework supports the importance of structuring transparent, interpretable, and institutionally accountable documentation in the digital space. In this sense, CLeAR presents an algorithmic governance methodology based on interdependent pillars: (a) explicit description of the context and detailed circumstances of the system's use; (b) formal identification of its operational, legal, and epistemic limitations, in order to identify risks in advance and establish limits and guarantees; (c) presentation of the reasonable motivation for automated decisions and inferences; (d) transparent mapping of the premises and assumptions incorporated into modeling and training; and (e) assessment of the risks involved, with respective mitigation strategies and contingencies. Its applicability to legal databases in Brazil is evident, as it allows validating not only the technical robustness of statistical models, but all the variables inherent to artificial intelligence systems and algorithms, enabling high levels of auditability.  

Consolidating the pact between technology, education, and transparency is urgent; the State cannot hide within its own data. An analysis of the consolidation of precedent theory in Brazil, considering the innovations introduced by the 2015 Code of Civil Procedure (CPC), reveals a significant moment in the quest for predictability and rationality within the judicial system. Since this milestone, judicial decisions have gained binding force, becoming fundamental references for both administrative bodies and the courts. This not only implies institutional deference but also demands a robust organisational structure, firmly anchored in memory and transparency. The challenge ahead extends beyond the legal field, encompassing structural aspects. The effectiveness of the precedent system requires the State, across its various spheres and bodies, to establish legal databases capable of storing, classifying, interpreting, and interconnecting a broad array of decisions, agreements, and normative expressions. This necessity is not confined to the Judiciary alone; it equally involves regulatory agencies, audit courts, the Public Prosecutor’s Office, and administrative bodies responsible for decisions of legal significance. However, it is crucial to recognise that the administrative sphere represents the weakest link in Brazil’s institutional chain. Despite significant initiatives within the Brazilian Judiciary, the reality demonstrates that the vast majority of public institutions still lack databases that are structured, auditable, and semantically organised. Consequently, administrative decisions, disciplinary proceedings, judicial and extrajudicial agreements, as well as contracts and the entire universe of disciplinary and sanctioning jurisprudence, remain scattered and fragmented, hindering access to institutional memory, which should guide the State’s actions. In this context, the role of algorithms is fundamental. Currently, organising precedents depends on systems using legal, semantic, and statistical parameters. Implementing algorithms to categorise them requires a solid normative basis, technical curation, and a data structure that can be audited. Without these prerequisites, there is a risk that repetition will prevail over coherence, making automation a threat to the very essence of judicial reasoning. The scope of statistics must be understood in the context of AI’s impact. Statistics can be classified by different parameters. For reference, one may speak of inferential, predictive, diagnostic, multivariate, frequentist, Bayesian, non-parametric, jurimetrics, forensic, social, political, educational, descriptive, explanatory, high-dimensional statistics, and multiple variations, according to the discipline applied—such as biostatistics, psychometrics, computational statistics, and so forth. In other words, legal databases also serve statistical research, integrated with AI, to derive developments in various other areas and public policies. It is known that normative decisions impact the economy and public policies across numerous other spheres of society as a whole. In this regard, the interpretation of law is necessarily transdisciplinary and is not limited merely to the economic analysis of law. Organising precedents, therefore, ensures the right to understanding (the right to understand public decisions arises from fundamental rights enshrined in Articles 37 (head), 51 (item 14), 5 (item 60), and 1 (item 3) of the Constitution). Each individual, whether a natural or legal person, has the right to understand the criteria underpinning the public decisions affecting them. This fundamental right to comprehension is intrinsically linked to transparency, traceability, and institutional legitimacy and is realised only when decisions are intelligible, auditable, and consistent with consolidated jurisprudence. Without well-structured legal databases, there are no real precedents—only a disordered accumulation of decisions. And where accumulation exists, noise, inequalities, and arbitrariness arise, compromising justice and the system’s effectiveness. A structured legal database functions as a digital platform capable of storing, classifying, and correlating administrative and judicial decisions, norms, agreements, and regulatory documents. This organisation must follow clearly defined legal criteria, with rigorous classifications ensuring traceability and version control. Beyond mere preservation, the database must guarantee institutional coherence, facilitate intelligent searches, consistent interpretations, and decisions aligned with the historical jurisprudence of institutions and precedent systems. In this context, legal databases constitute genuine living ecosystems, continually fed by normative and decisional indexing based on algorithmic logics, metadata, discursive hierarchies, and pre-established patterns. Contemporary statistics, in its multiple facets, performs critical roles, offering causal and algorithmic effectiveness with profound impacts on the institutional interpretation of mapped and indexed norms and decisions. One cannot overlook that statistical functions, integrated within databases, facilitate numerous functionalities in comprehending how certain decisions consolidate into normative standards and their subsequent societal consequences and impacts, including deviations, dysfunctions, underlying hermeneutic currents, and numerous subjective or objective pathologies inherent to decision-making or algorithmic phenomena. AI, in turn, operates in conjunction with contemporary statistics to facilitate advanced, rapid analyses derived from massive datasets. AI also plays varied roles based fundamentally on statistics, though its functions are distinct and integrated within this domain, provided they maintain auditable and rationally traceable premises. Technology, at this juncture, will deeply impact classification models based on the language of precedents, argumentative similarities, prevailing legal grounds, recognition of argumentative and normative patterns within decisions, detection of frequent contradictions, inconsistencies, essential coherences, predictive models, and a vast series of patterns aimed at ensuring predictability, legal certainty, and efficiency within the normative system. In an era of transparency and complexity, the right to understand public decisions emerges as a fundamental right derived from the principle prohibiting arbitrariness by public powers, inherent in the substantial due legal process (Article 5, item 54, of the Brazilian Constitution). Publishing decisions in official gazettes is insufficient, as these instruments do not allow substantial access to transparency regarding the full set of decisions that constitute the norms embodied in precedents. On the other hand, judicial databases are also inadequate, as they do not ensure interconnection with other branches of government nor the effective efficacy of precedents throughout the Brazilian State. Furthermore, the formation of precedents itself demands cultural strengthening among public and private actors in decision-making processes, involving deeper transformations in Brazilian education and research on jurisprudential production as a whole. Thus, it is urgent for legal education institutions, judicial academies, Public Prosecutor’s Office training programmes, Public Defenders’ offices, law firms, and education overall, as well as the Ministry of Education itself, to integrate precedent theory as a central curricular vector—indeed as a standalone discipline rather than an appendix to Civil Procedure Law. Brazil must abandon fragmentary interpretation and cultivate a legal culture rooted in institutional memory, argumentative coherence, and collective responsibility. To achieve this, AI must be incorporated into legal curricula, not merely as a technological novelty but as a tool promoting the rational organisation of law, grounded in ethical, epistemological, and normative principles, acting as an aid to human intelligence and ensuring auditability. Precedent theory must not only be applied but taught, debated, and systematised. To consolidate it, material improvements alone are insufficient: a cultural transformation is required. Structured legal databases must move beyond governmental tools to become platforms for teaching, research, and critical reconstruction of decision-making practices. Recognising the right to comprehensible information allows the country to develop a robust, ethical, and inclusive public transparency policy. This construction demands more than adopting new technologies; it requires curation, training, and a genuine willingness to listen and reflect. Without this awareness, precedents become empty, decisions become isolated, and access to justice becomes an opaque normative labyrinth. Consolidating the pact between technology, education, and transparency is urgent. The State cannot hide within its own data; it must organise, explain, and share them—that is the essence of institutional legitimacy in the 21st century. In this sense, it is crucial to acknowledge that access to justice begins with access to the logic of decisions—comprehensible only when organised in public, coherent, and accessible databases, and taught from the outset. Promoting a culture of precedents thus becomes a public policy aimed at institutional integrity. Without this foundation, rights remain unattainable and justice incomprehensible.

On twenty-second of August, I have the honour of marking a milestone beyond my professional career — the 25th anniversary of the book Sanctioning Administrative Law — with an unprecedented lecture at the II Congresso Brasileiro de Direito Administrativo Sancionador (Brazilian Congress on Sanctioning Administrative Law), organised by IDASAN, to be held at the AASP headquarters. Lecture theme: Objective and Subjective Responsibility in Sanctioning Administrative Law More than merely a technical-legal domain, Sanctioning Administrative Law also reflects the ethical-institutional nature of the state’s punitive power. In this lecture, I propose reflections that transcend the boundaries of legal dogmatics: What is the meaning of legal responsibility in the 21st century? Which values should guide the state’s sanctioning function? How should the state’s punitive claims be oriented within a Democratic Rule of Law? This is a journey to reclaim the ethical purpose behind the exercise of power. It is not merely about punishing, but understanding, guiding, restoring, and protecting the dignity of institutions and individuals. To register, simply visit the IDASAN website: https://idasan.com.br/ii-congresso-brasileiro-de-direito-administrativo-sancionador#ingresso #FábioMedinaOsório #IDASAN #SanctioningAdministrativeLaw #Lecture

AGU Call for Papers: Superior School of the AGU Opens Submissions for the 'Sanctioning Administrative Law' Collection – Fábio Medina Osório as One of the Coordinators The journal Publicações da Escola Superior da AGU (Advocacia-Geral da União – Office of the Attorney General of the Union) has announced the opening of submissions for the collection Sanctioning Administrative Law, which will gather original articles on the topic. The project is coordinated by João Carlos Souto (National Treasury Attorney), André Augusto Dantas Motta Amaral (General Counsel of the Union), and Fábio Medina Osório, partner at Medina Osório Advogados and one of the leading references on the subject, both nationally and internationally. The technical organization is led by Henrique Augusto Figueiredo Fulgêncio, General Coordinator of Postgraduate Studies at the Superior School of the AGU. The call for submissions is open to PhDs, PhD candidates, Masters, and Master’s candidates in Law or related fields, as well as members of the AGU’s legal career. All articles will be reviewed by a specialized editorial committee before the final selection. Interested authors can submit unpublished works exclusively through the journal’s website (https://revistaagu.agu.gov.br/index.php/EAGU/about/submissions), where more information about the submission process and evaluation criteria is also available. FGV FGV Open Lecture: Administrative Sanctioning Law, with Fábio Medina Osório The FGV Rio Law Program is pleased to announce a special Open Lecture on Administrative Sanctioning Law, featuring Dr. Fábio Medina Osório as the keynote speaker. The lecture will be part of the opening conference of the FGV Law LLM in Rio de Janeiro. At the invitation of Dr. Thaís Marçal, Coordinator of the lato sensu postgraduate courses at FGV Direito Rio, and Dr. Sérgio Guerra, Director of the institution, Dr. Fábio Medina Osório—President of the International Institute for the Study of State Law (IIEDE), PhD from Universidad Complutense de Madrid, and Head of Medina Osório Advogados—will share his expertise on the fundamental aspects of Administrative Sanctioning Law. This event presents a unique opportunity to engage with one of the leading legal scholars in the field, gain insights into the learning methodology of the LLM program, and explore key topics that are central to the course’s curriculum.   Event Details: Date & Time: April 2 | 7:00 PM – 8:00 PM Location: FGV Direito - RJ | Praia de Botafogo, 190 - Room 907 Registration: Participation is free, but prior registration is required through the official website: FGV Event Registration Organized by: FGV Rio Law Program We invite legal professionals, academics, students, and all those interested in Administrative Law to attend this insightful session and engage in high-level discussions on the evolving landscape of Administrative Sanctioning Law.            

São Paulo, March 10, 2025 – The Movimento de Defesa da Advocacia (MDA), one of Brazil's most influential legal institutions dedicated to safeguarding the prerogatives of the legal profession and strengthening the rule of law, has elected its new board of directors. In a unanimous decision, Rodrigo Jorge Moraes was appointed as the new president, succeeding Eduardo Salusse, whose exemplary leadership was celebrated by the organization's Council for his transformative contributions to Brazil's legal landscape. Among the eminent legal experts continuing in the MDA's governance, Dr. Fábio Medina Osório, founding partner of Medina Osório Advogados, has been reappointed as a Council member, reinforcing his unwavering commitment to defending legal professionals' rights and championing institutional integrity across Brazil's justice system. "I am deeply honored to renew my mandate with the MDA, an institution that stands as a crucial pillar in safeguarding the independence and dignity of the legal profession in Brazil," stated Medina Osório. "I extend my sincere congratulations to Rodrigo Jorge Moraes on his well-deserved election and express my profound gratitude to Eduardo Salusse for his exceptional leadership. The MDA will continue to be at the vanguard of legal advocacy, ensuring that the fundamental principles of justice and due process remain inviolable in our democracy." About the MDA The Movimento de Defesa da Advocacia (MDA) is a prestigious non-profit association established in Brazil to protect the professional rights of lawyers and promote the rule of law. The MDA is dedicated to fortifying democratic institutions by ensuring that legal practitioners can operate with complete independence and integrity. The organization serves as a vital forum for legal professionals to address critical issues affecting the justice system and advocates for robust policies that uphold justice, fairness, and legal security for all Brazilians. For further information, please contact: [email protected] Medina Osório Advogados https://www.medinaosorio.com.br/ #LegalExcellence #JusticeAdvocates #BrazilianLaw #LegalInnovation #RuleOfLaw #LegalLeadership #MedinaOsorioAdvogados #MDA #TopLawyers #LegalIntegrity

By Fabio Alberici de Mello, journalist Over the past 25 years, Fábio Medina Osório has been a central figure in the consolidation of Administrative Sanctioning Law in Brazil. His work, Direito Administrativo Sancionador, originally published in 2000, was the first monograph on the subject in the country and introduced a new concept of administrative sanction, allowing the Judiciary to also impose sanctions of this nature. This innovative doctrine, strongly influenced by the European tradition, was fundamental for the principles of Criminal Law to be applied to the field of administrative sanctioning, providing greater legal certainty and protection to defendants in administrative proceedings. The relevance of this work is reflected in the tenth edition of the book, recently released by the editor of Revista dos Tribunais, consolidating its impact on the legal market. In addition, it was Medina Osório who introduced, for the first time in Brazil, the subject of Administrative Sanctioning Law in the master's and doctoral courses of the Law School of the Federal University of Rio Grande do Sul (UFRGS), in 2004, boosting the academic study of the subject. Over the decades, his doctrine has influenced the jurisprudence of higher courts, especially the Superior Court of Justice (STJ) and the Federal Supreme Court (STF), and was essential for the reform of the Administrative Misconduct Law (Law 14,230/2021). The new legislation expressly incorporated the legal regime of the Sanctioning Administrative Law for administrative misconduct, consolidating an interpretation that Medina Osório had defended since 1999, when he published an article in the Spanish Public Administration Journal. In this exclusive interview, Medina Osório analyzes the evolution of Administrative Sanctioning Law in Brazil, the impact of the reform of the Improbity Law, the role of the STF and the Inter-American Court of Human Rights and the challenges of fighting corruption in the era of artificial intelligence. The evolution of Administrative Sanctioning Law in Brazil: from theory to jurisprudence Fábio Alberici de Mello, journalist: Dr. Medina Osório, you were a pioneer in the introduction of Administrative Sanctioning Law in Brazil. How do you evaluate the evolution of this area since the publication of your first article in 1999, through the launch of your work in 2000 and the introduction of the discipline at UFRGS in 2004? Fábio Medina Osório: When I published my first article on the subject in 1999 and, the following year, I launched Direito Administrativo Sancionador, Brazil still did not recognize the existence of its own sanctioning regime within Administrative Law. Administrative sanctions were applied in a dispersed manner, without a clear set of principles that guaranteed legal certainty and respect for fundamental guarantees. The introduction of this discipline in the master's and doctoral courses at UFRGS in 2004 was a milestone, as it brought to the academic debate the need to apply the principles of Criminal Law to Administrative Sanctioning Law, ensuring due process, presumption of innocence, strict legality and proportionality. Over time, this doctrine directly influenced the case law of the STJ and STF, which began to recognize that administrative misconduct and corporate infractions must follow a sanctioning regime based on constitutional guarantees. This movement culminated in Law 14,230/2021, which reformed the Administrative Misconduct Law and expressly adopted this regime, consolidating an interpretation that I had already defended since 1999. Furthermore, this evolution in Brazil followed an international trend, especially in the case law of the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACHR), which began to directly influence the decisions of Brazilian higher courts. The STF and the retroactivity of the new Improbity Law Fábio Alberici de Mello, journalist: The reform of the Administrative Misconduct Law incorporated the Administrative Sanctioning Law regime, but there is still controversy over its retroactive application. How do you assess the STF's position on this issue? Fábio Medina Osório: The STF has a decisive role in consolidating the reform, but it has adopted a restrictive interpretation in some fundamental aspects. The Inter-American Court of Human Rights has already established that more beneficial sanctioning norms must always be retroactive, since the retroactivity of more favorable laws is an internationally recognized fundamental right. However, when judging the general repercussions of the statute of limitations on misconduct (Topic 1,199), the STF understood that the statute of limitations is not a matter of substantive law, denying its retroactivity. This position contradicts the case law of both the Inter-American Court and the European Court of Human Rights, which treat the statute of limitations as an essential right of the accused person. Another point of concern was the restriction of retroactivity for cases that have already been finalized. The Supreme Court ruled that, if the sanction has already been applied and the case concluded, the new, more beneficial law cannot be retroactive. This interpretation needs to be revised so that Brazil is fully aligned with the guarantees enshrined in the inter-American system. The fight against corruption and the role of artificial intelligence Fábio Alberici de Mello, journalist: Some claim that the reform of the Improbity Law would have weakened the fight against corruption. Do you agree with this view? Fábio Medina Osório: No. The fight against corruption cannot depend solely on a repressive model. It requires a more sophisticated approach, based on integration between control bodies, the use of artificial intelligence and the expansion of the State's investigative capacity. Technologies such as machine learning and predictive data analysis are essential tools for detecting patterns of corruption before damage is done. In addition, it is essential to strengthen cooperation between oversight bodies and improve information sharing to make the system more efficient. The reform of the Administrative Misconduct Law brought greater legal certainty to the sanctioning process, without compromising the fight against corruption. The challenge now is to improve investigation mechanisms and modernize methods for preventing and repressing illicit activities. The future of Sanctioning Administrative Law in Brazil Fábio Alberici de Mello, journalist: Finally, what are the next challenges for Administrative Sanctioning Law in Brazil? Fábio Medina Osório: The main challenge is to definitively consolidate the sanctioning legal regime within Administrative Law, ensuring that it does not suffer setbacks in the STF and that it increasingly aligns with the jurisprudence of the Inter-American Court and the European Court of Human Rights. Furthermore, it is essential to advance in the standardization of the regulation of the Anti-Corruption Law (Law 12.846/2013), avoiding legal uncertainty and divergent interpretations among federative entities. Brazil is on the right path, but it needs to strengthen these guarantees so that Administrative Sanctioning Law continues to evolve in a fair, safe and efficient manner. The unconstitutionality of culpable misconduct and the limits of legislative conformity Fábio Alberici de Mello, journalist: Dr. Medina Osório, the Supreme Federal Court, in a recent ruling, declared the unconstitutionality of negligent misconduct, reaffirming the requirement of intent to constitute an improper act. The decision generated intense debates, especially regarding the scope of the reform promoted by Law 14,230/2021 and the possibility that the legislator, in the future, will resume the provision of sanctions for negligent conduct. How do you evaluate this decision by the Supreme Federal Court? Fábio Medina Osório: The reform of the Administrative Misconduct Law was fully constitutional and falls within the freedom of legislative conformation that the democratic principle grants to the legislator. What Law 14,230/2021 did was to delimit the concept of administrative misconduct, removing the negligent modality to ensure greater legal certainty and align the sanctioning regime for misconduct with the fundamental principles of Criminal Law and Administrative Sanctioning Law. However, it is important to understand that the removal of culpable misconduct from legislation does not mean that the legislator is prevented from reintroducing it in the future. The democratic principle itself that allowed the revocation of culpable types also allows the legislator, if he considers it necessary, to once again enshrine culpable misconduct within the limits of the freedom of legislative conformation. There is no constitutional prohibition that prevents the existence of culpable types in the sanctioning legal system. The Penal Code itself provides for types such as culpable embezzlement, and no one has ever stated that this classification would be unconstitutional. Likewise, if the legislator understands that there is a need for sanctions for culpable acts that cause serious harm to the public treasury or compromise administrative morality, he may reintroduce culpable misconduct through a new legislative debate. Fábio Alberici de Mello, journalist: But from the point of view of the constitutional regime of improbity, would there be any material limitation to this reintroduction of the types of culpable misconduct? Wouldn't the STF, by removing culpable improbity, be setting an interpretative limit for the legislator Fábio Medina Osório: I do not see this decision by the STF as an absolute obstacle to the legislative establishment of administrative misconduct. What the Court did was to interpret Law 14,230/2021 within the context of the current sanctioning regime, reinforcing that the requirement of intent, at the moment, arises from the will of the legislator and the principle of strict legality. This, however, does not mean that a future law that provides for negligent misconduct would automatically be unconstitutional. The crucial point here is to understand that administrative misconduct has a sanctioning nature, but is not identical to Criminal Law. The legislator has a wide margin of discretion to define administrative offenses and the respective liability regimes. The Constitution requires that administrative misconduct be combated, but does not impose a single model for classification Therefore, if tomorrow the legislator decides that certain culpable behaviors represent an unacceptable risk to administrative probity and deserve sanction, it may create new legal types, as long as constitutional principles are respected. What cannot be allowed is that this decision by the STF be interpreted as an insurmountable barrier, under penalty of hindering the normative evolution of Sanctioning Administrative Law. Fábio Alberici de Mello, journalist: This leads us to a broader debate about the limits of freedom of legislative formation. Administrative misconduct has been a subject of strong judicialization, especially in the Supreme Federal Court, which is frequently called upon to interpret the compatibility of sanctioning norms with the Constitution. Do you believe that there is a risk of hyperjudicialization, in the sense that the Judiciary may end up excessively restricting the legislator's scope of action in this matter? Fábio Medina Osório: Without a doubt. This is one of the greatest challenges for Administrative Sanctioning Law in Brazil. The STF has a fundamental role in guaranteeing the constitutional order, but the control of constitutionality cannot become an undue limitation of legislative capacity. The freedom to shape legislation is a pillar of the Democratic State of Law, and its excessive restriction can lead to a weakening of the legislative function, generating legal instability and institutional insecurity. The risk of hyperjudicialization occurs when the Judiciary begins to review legitimate legislative choices, without there being a clear violation of the Constitution. In the case of administrative misconduct, caution must be taken not to transform the STF into a body that ultimately defines the content of sanctioning laws, when this is a prerogative of the National Congress. If there is a democratic debate that leads to the reintroduction of culpable misconduct, and if this reintroduction is done within constitutional parameters, there is no reason for the Judiciary to invalidate this option. The risk is that, in the face of a new law providing for culpable types, there will be a wave of judicialization again, with arguments that today's STF decision would have established a definitive understanding on the need for intent. This would be a mistake, because the current decision is limited to interpreting the current legislation, and not establishing an absolute constitutional principle. Fábio Alberici de Mello, journalist: Given this scenario, what recommendations would you make for legislators to act more safely, avoiding new challenges in the STF? Fábio Medina Osório: The legislator must act with solid technical and reasoning. If there is a movement to reintroduce negligent misconduct, it will be essential that the legislative debate be well structured, based on technical studies and parameters already consolidated in Comparative Law. The reasoning must demonstrate that the provision of negligent types serves a legitimate public interest and respects the guarantees of the Administrative Sanctioning Law. Furthermore, it is important that Congress establish objective criteria for characterizing gross negligence, preventing the rule from being interpreted broadly and imprecisely. The more clearly defined the rule is, the lower the risk that the Supreme Court will consider it unconstitutional for violating the principle of legal certainty. Another crucial point is the dialogue between the branches of government. The legislator must pay attention to the discussions in the STF and in the legal community in order to create rules that are legally sound and can withstand any challenges. This involves a qualified debate with jurists, academics and legal professionals, ensuring that the legislation is formulated in a way that avoids unnecessary conflicts of interpretation. Fábio Alberici de Mello, journalist: Do you believe that this dialogue between the powers is occurring satisfactorily in Brazil, or is there a disconnect between what the legislator proposes and what the Judiciary decides? The right to legally tolerable error and the impact of the reform of Law No. 14,230/2021 Fábio Alberici de Mello, journalist: Dr. Medina Osório, since your first work on administrative misconduct, published in 1997, you have argued that misconduct was a qualified illegality and that public administrators should have a legally tolerable margin of error. You have always compared this thesis with the functioning of the justice system itself, highlighting that judges can make mistakes and have their sentences overturned, members of the Public Prosecutor's Office can formulate inept petitions or complaints, and, similarly, public administrators should not be punished for common mistakes. Law No. 14,230/2021 adopted this thesis by eliminating negligent misconduct and requiring specific intent for liability. However, gross error, which was previously a differentiating criterion, was abolished. How do you assess this change and the impacts of the requirement of specific intent for the configuration of misconduct? Fábio Medina Osório: The reform of the Administrative Misconduct Law represented a significant step forward in recognizing that not all illegalities can be treated as administrative misconduct. Since the beginning of the doctrinal debates on the subject, I have always argued that administrative misconduct could not be confused with a mere error in public management. A public agent, in the exercise of his or her functions, must have a space to act that allows him or her to make complex decisions without the permanent fear of automatic liability. Law No. 14,230/2021 adopted this view by eliminating the negligent form of misconduct and establishing specific intent as an essential requirement for liability. This change is fundamental because it prevents public officials from being punished for technical or administrative decisions that, although possibly erroneous, were made without bad faith. Before the reform, the existence of gross error was used as an intermediate criterion for establishing misconduct. With the new law, gross error is no longer an independent basis for liability, which reinforces the need to prove specific intent. This means that the mere violation of rules or the practice of an erroneous administrative act are no longer sufficient to characterize misconduct. Fábio Alberici de Mello, journalist: This change also directly impacts the way in which misconduct lawsuits are structured, especially with regard to the initial claim and the need to describe the specific intent. How does this requirement affect the dynamics of the lawsuits? Fábio Medina Osório: The requirement of specific intent has profound implications for the way in which misconduct actions should be conducted. Before the reform, it was common for actions to be filed based on a generic formulation, simply alleging that a certain public agent had acted with the intention of violating norms. Now, that is no longer enough. The initial claim for an action for misconduct must describe, in detail, the specific intention of the public agent. Generic intent, that is, the mere intention to commit an act contrary to the law, is no longer enough. It is necessary to demonstrate the illicit purpose intended by the agent, what his real intention was in committing the act. If a lawsuit is filed without such a precise description of the specific intent, the judge must order the amendment of the initial claim. If the claim is not amended, it must be dismissed. This represents a strategic shift in the narrative of wrongful conduct, as it requires the plaintiff to present a detailed description of the agent’s intent from the outset of the lawsuit. Furthermore, this requirement also applies to actions for compensation to the public treasury. It is no longer possible to file actions of this nature without demonstrating specific intent. This means that the mere fact that a public manager has caused harm to the public treasury is not enough for him to be held liable for misconduct. It is necessary to prove that he acted deliberately to harm the public coffers. Fábio Alberici de Mello, journalist: This distinction between generic intent and specific intent revives a debate that has long permeated Criminal Law and now assumes a central role in Administrative Sanctioning Law. In practical terms, how do you see this distinction influencing the conduct of misconduct proceedings? Fábio Medina Osório: The distinction between generic intent and specific intent has always been a fundamental theme in Criminal Law, and now it has become a central element in Administrative Sanctioning Law. In the context of administrative misconduct, this distinction is crucial because it directly affects the classification of improper acts and the way in which the accusation should be formulated. Generic intent, which was limited to the mere intention of failing to comply with regulations, can no longer be used as the basis for an action for misconduct. Now, the prosecution must demonstrate that the public agent had a specific purpose in carrying out the act, which requires a much greater level of detail in the description of the facts. This makes the accusation more technical and prevents actions from being based on subjective inferences about the manager's intention. This change provides greater legal certainty for public officials and prevents the trivialization of administrative misconduct. For a long time, there was a tendency towards excessive criminalization of public management, in which any wrong decision was subject to liability. With the requirement of specific intent, liability now depends on a more rigorous analysis of the agent's intentions and the specific circumstances of the case. Fábio Alberici de Mello, journalist: And how do you see the practical application of this change by the courts? Are the Public Prosecutor's Office and the Judiciary prepared for this new requirement? Fábio Medina Osório: The application of this change by the courts is still in the adaptation phase, and I believe that a transition period will be necessary for all actors involved – Public Prosecutor's Office, judiciary and lawyers – to adjust their procedural practices to this new reality. The Public Prosecutor's Office, for example, will have to reformulate its approach when filing lawsuits, as it will no longer be able to base accusations on generic inferences about the conduct of public officials. More detailed investigation and evidentiary work will be required to demonstrate the existence of specific intent. Judges will also need to adopt a more rigorous criterion when analyzing initial petitions, requiring that the specific intent be duly described before accepting the action. If this requirement is not met, the action should not even be admitted. This is a reflection of the sanctioning logic itself, which requires a higher level of precision and predictability so that the right to defense is fully ensured. Furthermore, the case law of the higher courts should consolidate more objective parameters for the characterization of specific intent, ensuring that the new requirement is not interpreted in a restrictive or expansive manner that is at odds with the legislator's intention. This will be a crucial phase for the consolidation of the reform and for the improvement of the administrative misconduct regime in Brazil.

SUMMARY This article analyzes the legislative changes that were introduced by Complementary Law No. 213/2025 in the private insurance system in Brazil, especially in Decree-Law No. 73/1966 and related legislation. These changes modernized the regulatory framework, covering topics such as the regulation of insurance cooperatives, which beforewere restricted to the agricultural, health and work accident sectors,and the formalization of mutualist asset protection operations, in addition to expanding the powers of the Superintendence of Private Insurance (SUSEP). Insurance cooperatives began to be regulated with clear requirements for governance, oversight and asset independence. Mutualist asset protection emerged as an alternativeto the insurance, based on the sharing of costs among participants. The sanctioning regime was reinforced with strict penalties, greater accountability of managers and criminalization of illicit behavior, aiming to guarantee market stability and greater protection for consumers. The article concludes that these changes have the potential to transform the insurance and asset protection sector in Brazil, promoting inclusion, legal certainty and alignment with international standards, although they present operational and adaptation challenges for regulated entities and regulators. KEYWORDS Administrative sanctioning law; Insurance cooperatives; Mutual Asset Protection; Susep; Insurance companies. ABSTRACT The article analyzes the legislative changes introduced by Complementary Law No. 213/2025 to the private insurance system in Brazil, particularly to Decree-Law No. 73/1966 and related legislation. These changes modernized the regulatory framework, covering topics such as the regulation of insurance cooperatives and the formalization of mutual property protection operations, as well as expanding the powers of the Superintendence of Private Insurance (SUSEP). Insurance cooperatives are now regulated with clear requirements for governance, oversight, and asset independence. Mutual property protection has emerged as an innovative alternative to traditional insurance, based on cost-sharing among participants. The sanctioning regime has been strengthened with stricter penalties, increased accountability for managers, and the criminalization of irregular practices, aiming to ensure market stability and greater consumer protection. The article states that these changes have the potential to transform the insurance and property protection sector in Brazil, promoting inclusion, legal certainty, and alignment with international standards, although they pose operational and adaptation challenges for conclusive regulated entities and regulators. KEYWORDS Sanctioning Administrative Law; Insurance Cooperatives; Mutualist Asset Protection; Susep; Superintendence of Private Insurance; Insurers.   Introduction The insurance sector in Brazil plays an essential role in economic development and in protecting the assets of individuals and companies. The evolution of this market is directly associated with the creation of a robust regulatory framework capable of meeting the demands of a dynamic economic environment. This market has expanded, both in Brazil and worldwide, in the post-globalization and post-pandemic scenario, with technological advances and the perception of increased risks. In this scenario, it is important to reflect on the principle of legal certainty and the irradiation of its effects within the scope of the sanctioning administrative law that governs the state's actions in this area. In this sense, administrative infractions in the insurance market, when committed by managers of insurance companies, have common and universal characteristics, reflecting the need to regulate the conduct of managers in this sector, which is highly sensitive to the public interest. These infractions are often associated with the violation of corporate governance standards, such as the lack of effective internal controls, or admit negligence in supervising critical operations. In any scenario, subjective liability is required. Furthermore, regulatory systems seek to hold managers accountable for both direct acts and omissions that compromise the solvency of the insurer or harm consumers. It should be noted that violations are linked to the principles of administrative sanctioning law, requiring that prohibited conduct and sanctions be previously defined in regulations and, above all, be previously delimited by law in a predictable manner in their minimum cores. The applicable sanctions include fines, disqualification from management positions and, in serious cases, restrictions on the company's operations. Finally, the application of these rules is guided by the principles of proportionality and reasonableness, in addition to the individualization and personality of the penalty, ensuring that the penalties are appropriate to the seriousness of the violation. This uniformity reflects the global commitment to the protection of consumers, investors and the stability of the insurance market. As José Inácio Ribeiro Lima de Oliveira rightly points out, “such is the importance attributed to private insurance and pension activities of a complementary nature that the Federal Constitution of 1988 itself provides that it is the responsibility of the Union to supervise insurance and private pension operations (art. 21, VIII) and to privately legislate on civil law and insurance policy (art. 22, I and VII, respectively), as well as outline the main line of private pensions of a complementary nature (art. 202)”[1]. On January 15, 2025, Complementary Law number 213/2025 was approved, originating from Complementary Bill number 143/2024, which has on cooperative insurance companies and mutualist asset protection operations, as well as on the commitment term and the administrative sanctioning process within the scope of the Superintendence of Private Insurance. This new legislation must be interpreted from the perspective of constitutionalized administrative sanctioning law and, above all, by the jurisprudence of the Federal Supreme Court and the Superior Court of Justice, which has followed a path of respect for the constitutional guarantees of those administered and under its jurisdiction, as can be seen from the vast jurisprudence produced on this subject.[2]. Regarding the recent regulatory changes brought about by Complementary Law No. 213 of 2025, it is imperative to highlight the implications arising from the revisions promoted in Decree-Law No. 73/1966 and related legislation, which, in turn, introduced significant innovations in the scope of insurance cooperatives and mutualist asset protection. In fact, the new regulatory guidelines aim tor egularize a social phenomenon by bringing into legislation a market currently operating irregularly, providing greater robustness to legal security and optimizing regulatory efficiency. Delegalization, characterized by the transfer of legislative matters to sub-legal norms, is a practice that, although useful in some circumstances, can compromise legal certainty, especially in regulated sectors such as the insurance market. The legislation for the sector in Brazil, traditionally based on Decree-Law No. 73/1966, delegated broad regulatory powers to the Superintendence of Private Insurance (SUSEP) and the National Council of Private Insurance (CNSP).. Professor Eduardo García de Enterría defines delegalization as “the operation carried out by a law that, without entering into the material regulation of the subject, until then regulated by a previous law, opens such subject to the availability of the regulatory power of the Administration. Through the principle of contrarius actus, when a subject is regulated by a certain law, what we call a 'freezing of the hierarchical level' of the regulations that regulate the subject occurs, so that only by another contrary law can such regulation be innovated. A delegalization law operates as contrarius actus of the previous law of material regulation, however, not to directly innovate this regulation, but to formally degrade its hierarchical level so that, from then on, it can be regulated by simple regulations. In this way, simple regulations can innovate and, therefore, revoke previous formal laws, an operation that, obviously, would not be possible if the degrading law did not previously exist.”[3]. However, the Supreme Federal Court has consolidated its position that the constitutional legitimacy of delegalization is contrasted by the possibility of prohibiting or freezing the hierarchical level based on the reservation of treatment of certain matters by law of the same hierarchical level. This is what is seen in the precedent established by ARE No. 1401225 RJ[4], when Justice Rosa Weber highlighted that the STF “has already had the opportunity to affirm the constitutional legitimacy of delegalization in the judgment of RE No. 140.669-1 PE, in which the Rapporteur Justice Ilmar Galvão, adopting the lessons of JJ Canotilho, asserted that “the principles of legality, freezing of the hierarchical level and precedence of the law do not prevent, except in matters reserved to the law (taxes and crimes), the adoption of greater flexibility through the delegalization or degradation of the hierarchical level. In this case, a law, without entering into the regulation of the matter, formally lowers its normative level, allowing this matter to be modified by regulations.” Complementary Law No. 213/2025, in the universe of Brazilian sanctioning administrative law,update the administrative sanctioning process, prevented delegalization and transformed the national regulatory framework, acting as an inhibitor of the phenomenon of delegalization in matters related to administrative sanctioning law within the scope of SUSEP's activities[5]. In this sense, this legislation must be interpreted in light of the 1988 Constitution and in accordance with the case law of the higher courts, as well as from the perspective of the Inter-American Court of Human Rights. Art. 36, VII, of Decree-Law No. 73/1966, with the wording included by the aforementioned Complementary Law,deals with  oversightfor institutions operating markets supervised by SUSEP . Updating the administrative sanctioning processimplicitly requiresthe reviewcompliance programs to ensure strict compliance with the Decree-Law, other relevant laws, regulatory provisions in general related to supervised markets and CNSP resolutions, among others. It is important to emphasize the importance of obtaining international certifications, such as those referring to compliance with ISO - International Organization for Standardization standards, to validate the effectiveness of the corresponding compliance programs, in the context of the desirable convergence of national and international standards, to mitigate the risk of characterization of infractions by legal entities participating in supervised markets and their directors. Delegalization, therefore, as stated, constitutes a formula by which the legislator seeks to deteriorate the normative typicality, with a semantic opening so vague that it causes an intolerable erosion in the predictability of the prohibited conduct, to such an extent that it becomes unfeasible to contemplate the minimum core of the infraction that is intended to be attributed to the natural or legal persons covered by the legal norm. In this step, there is an undue granting of competence by the legislator to the sub-legal authority, a phenomenon that is designated as delegalization, in such a way that the authority inferior to the legislator receives a competence that does not belong to it, namely, that concerning the classification of the infraction in its entirety. In this aspect, the legislator exempted itself from the competence regarding the classification of the infraction and granted a competence that was exclusive to it to the administrative authority. Another type of delegalization is when the legislator is silent on the definition of the offense and the administrative authority creates, of its own volition, an offense through an autonomous normative process. This phenomenon also occurs when the offense is contemplated by law, but the sanction is created exclusively by the administrative authority, in which case the violation of the principle of legality results in the creation of the penalty without prior legal imposition. In this scenario, the principle of legality in administrative sanctioning law encompasses infractions and sanctions, as much as in the scope of criminal law, whose rules and principles extend to administrative sanctioning law by symmetry, as the case law of the higher courts has recognized in Brazil, for a long time, as can be seen in the following precedents: EREsp: 875163 (RS 2009/0242997-0)[6], EDcl no REsp: 722403 (RS 2005/0020077-2)[7], REsp: 2087667 (RJ 2023/0261697-5)[8]and ADI: 2893 PE[9]. In the doctrine, see OSÓRIO, Fábio Medina. Administrative Sanctioning Law. 1st ed. The intersection between national and international regulations thus proves to be a fertile field for contemporary legal debate, as it challenges legal practitioners to reflect on the compatibility of legislation and the effectiveness of sanctions imposed, always in light of the basic principles of legality and the protection of human rights. Therefore, the integration of these different sources of law is not only desirable, but necessary for the construction of a more robust and fair legal system that respects human dignity and promotes legal certainty in the exercise of administrative activity. Strengthening the principle of legality in Complementary Law No. 213/2025 and the Risks of Delegalization[10] Decree-Law No. 73/1966, still in force, was enacted under the aegis of the 1946 Constitution, so it was received by the 1988 Constitution, including on the rule of the principle of legality (this constitutional principle that governs the sanctioning administrative law and the democratic rule of law). Nevertheless, in view of the reform introduced byComplementary Law No. 213/2025, it is imperative to pay attention to the importance of strengthening the principles of legality and typicality within the scope of administrative sanctioning law, since Decree-Law No. 73/1966 alloweddelegalization of the sanctioning power of the state. The principle of legality, the basis of the Democratic State of Law, requires that fundamental issues be addressed by formal law, approved by the Legislature, ensuring transparency, predictability and democratic legitimacy. Delegalization, when excessive, violates the legal reserve by delegating to sub-legal norms the regulation of matters that directly impact rights and obligations, in addition to imposing limits on the State's punitive power itself.Delegalization may occur, but under the pillars of non-arbitrariness, good grounds, transparency, and punitive coherence of the State. By disregarding these limits, delegalization will imply the deterioration of typicality in the law, that is, it will result in an excessive delegation to the sub-legal authority to classify the infraction and the sanction. According to Fabio Medina Osorio[11], criminal law and administrative sanctioning law are complementary branches of law in the exercise of the State's punitive power. As a result of this complementarity, the principles and guarantees applicable to each branch cannot be ignored. The unity of the punitive power imposes respect for the principles of legality and typicality in both branches, requiring a rigorous and systematic interpretation to avoid arbitrariness and excessive delegalization of sanctioning norms. The delegalization provided for in Decree-Law No. 73/1966, which established the National Private Insurance System in Brazil, transferred a series of regulatory powers to SUSEP and CNSP, where matters that could be addressed by law began to be regulated by sub-legal rules. Some hypotheses contained in the Decree-Law refer to the CNSP's power to establish guidelines and standards for private insurance policy, which includes the regulation of technical and operational aspects of the sector. CNSP also has the power to regulate the constitution, organization, operation and supervision of entities operating in the insurance market. With regard to SUSEP's power, Decree-Law No. 73/1966 tasked it with implementing the policies outlined by CNSP, regulating and supervising insurance, co-insurance, reinsurance and retrocession operations. In addition, SUSEP is competent to issue standards on independent audit reports and opinions for reinsurers and insurers. At the same time, Decree-Law No. 73/1966 expanded the delegalization to include the regulation of operations, the regulation of entities participating in the insurance market and the implementation of adjustments to changes in the insurance market. The Decree-Law allowed the CNSP and SUSEP to establish technical and operational standards for the conduct of insurance activities, including the definition of rates, policy conditions and operational limits. The CNSP may also regulate the administration of self-regulatory entities in the brokerage market and set fees and commissions. In turn, SUSEP may organize and manage consortia, in addition to settling claims in accordance with established criteria. The relevant Decree-Law also allowed the CNSP and SUSEP to adjust the standards in response to changes in the market, in order to ensure that regulation remains relevant and effective. These delegations allow for more agile adaptation to market changes and regulatory needs, but they can also raise concerns about the transparency and predictability of the rules applied, impacting legal certainty in the insurance sector. To some extent, Decree-Law No. 73/1966was updated byComplementary Law No. 213/2025, which introduced changesin insurance legislation, as it established specific limits and guidelines on how delegalization should be conducted, restricting the scope of normative delegation previously permitted by Decree-Law No. 73/1966. In the insurance market, the risks of delegalization include legal uncertainty, since, as previously stated, sub-legal standardswithin the scope of the administrative sanctioning processare more susceptible to frequent changes, which generates instability for those regulated. In addition, there is a risk of concentration of power in regulatory bodies, as broad delegation can lead to arbitrary decisions, compromising regulatory balance. Regulatory fragility also stands out, resulting from the absence of a robust legal basis, which weakens the legitimacy of the standards applied. Changes in Brazilian Legislation Regarding Decree-Law No. 73/1966, which became the cornerstone of the National Private Insurance System, it is worth highlighting that its conception aimed to regulate the complex insurance and reinsurance operations in Brazil, assigning SUSEP an indisputably important role in the supervision of these activities. However, the evolution of the economic scenario and the growing clamor for social demands imposed the needof an update of this regulatory framework. In this context, Complementary Law No. 213/2025 emerged as a restructuring instrument, proposing incisive changes that reverberate not only in the Decree-Law, but also in a range of related regulatory diplomas. The changes implemented cover a number of aspects, including the inclusion of cooperative insurance companies, which until then lacked adequate regulation and oversight. Furthermore, the formalization of mutual asset protection operations, combined with the creation of new sanctioning rules, demonstrates the intention to modernize the system. The interaction of these changes with preexisting legislation, such as Complementary Law No. 109/2001, which regulates supplementary pension plans, and Complementary Law No. 126/2007, which deals with reinsurance, demonstrates a deliberate effort to integrate the rules into a more cohesive regulatory landscape that is adaptable to contemporary demands. The Complementary Law, by making significant changes to several laws relevant to the sector, directly impacted Decree-Law No. 73/1966, expanding its regulatory scope to include mutualist asset protection operations, in addition to strengthening state control through the robust action of SUSEP (Superintendence of Private Insurance). These changes aim not only to modernize, but also to strengthen the regulatory framework of the insurance market. Furthermore, Complementary Law No. 109/2001 was also amended to eliminate the requirement for prior authorization for the election and appointment of administrators in certain circumstances. This measure promotes the reduction of bureaucracy and proposes to facilitate administrative procedures, thus ensuring greater efficiency in the management of regulated entities. Regarding Complementary Law No. 126/2007, the incorporation of new specific rules for the contracting of reinsurance by insurance cooperatives is a crucial step towards improving the regulation and legal security of the operations of these entities, strengthening their presence in the market. Law No. 12,249/2010 was also adjusted to adapt the inspection fee to the new reality of the insurance, reinsurance and capitalization markets. The adaptation of these fees, in turn, seeks contemplate new entrants, ensuring balance and efficiency in the sector's operations. Therefore, the changes covered by the Complementary Law represent a significant advance in the modernization of the legal framework of the insurance market, aligning it with current needs and thus promoting greater security, competitiveness and efficiency. Complementary Law No. 213/2025 and the Implicit Prohibition on Delegalization Although the Complementary Law does not explicitly mention the prohibition of delegalization, its provisions demonstrate a clear intention to reduce dependence on sub-legal norms, strengthening legal certainty in the sector. In this context, it is imperative to highlight the specific regulations that Insurance Cooperatives now adopt, with clear governance requirements and operational restrictions. Thus,the law provides that cooperatives must be established exclusively for this purpose and may, subject to prior authorization from Susep, operate in any branch of private insurance, except for those expressly prohibited in specific regulations issued by the CNSP and insurance structured in the financial regimes of capitalization and distribution of coverage capital. Insurance cooperatives are governed by the National Council of Private Insurance (CNSP) and supervised by the Superintendence of Private Insurance (Susep), being subject to strict criteria for their constitution and operation. Its governance structure is adapted according to the size and complexity of operations, ensuring legal and financial security. In addition, capital shares now enjoy protection against seizures, and the return of amounts is subject to compliance with prudential requirements. Cooperatives have the prerogative to act exclusively for the benefit of their members, except when there are regulatory provisions to the contrary, and are subject to limitations, such as the prohibition of carrying out insurance brokerage activities. The Complementary Law establishes three main categories of insurance cooperatives, each with specific functions and characteristics ,in the formto beregulated by CNSP,but interconnected by common objectives of protection and solidarity among their members. Central insurance cooperatives and confederations of insurance cooperatives shall be constituted, respectively, only by individual insurance cooperatives and by central insurance cooperatives. These entities can act in coinsurance of affiliated individual cooperatives and of the affiliates of their central cooperatives, respectively. The inclusion of a specific chapter on insurance cooperatives in the Complementary Law is a significant innovation, as it establishes clear rules for the creation, governance and operation of these cooperatives, providing for distinct structures, such as individual cooperatives, central cooperatives and confederations. This chapter introduces operational restrictions, such as the prohibition of brokerage for central cooperatives and confederations, in addition to the requirement of prior authorization for the appointment of administrators and fiscal councilors. Insurance cooperatives play an essential role in strengthening the Brazilian insurance market, promoting inclusion and democratizing access to protection products. The regulation introduced by the Complementary Law signals important advances, establishing a legal framework that guarantees safety, sustainability and efficiency in the operations of these entities. By consolidating these aspects in legislation, the rule limits the discretion of regulatory bodies and provides greater clarity on the obligations of cooperatives. The mutualist asset protection model, in turn, emerges as a proposal which provides for the sharing of costs among participants to cover adverse events. In order to implement this system, management by an authorized administrator is essential, ensuring the patrimonial independence and protection of the groups' resources against financial problems of their members or the administrator itself. Thus, the Complementary Law aims to create a regulated model of mutualist patrimonial protection, ensuring patrimonial interests through the sharing of expenses, with clear definitions on the functions of the administrators and associations, including the essential patrimonial independence of the groups. Furthermore, the Complementary Law establishes transparency and sustainability mechanisms to ensure the integrity of the model. Among the requirements for the effective functioning of this system, patrimonial independence stands out, which requires the protection of the resources of mutual groups against financial risks. In addition, the rule requires transparency in management, which must be conducted by authorized administrators and subject to due supervision. This approach prevents structural aspects of the model from being regulated exclusively by sub-legal norms, providing greater predictability for both associations and participants. Sanctioning Regime and Inspection by SUSEP Regarding the enactment of Complementary Law No. 213/2025, it is imperative to highlight the impactthat it exercises over the sanctioning regime to which entities regulated by the Superintendence of Private Insurance (SUSEP) are subject. The aforementioned legislation, when the updateto the sanctioning and punitive powerss, which now has expanded and better defined powers to exercise its market supervision and regulation function introducing, therefore, a list of penalties that are more severe, ranging from imposing fines to the extension of the period of disqualification of managers. The SUSEP competency system, already established in Decree-Law No. 73/1966, gives it powers to monitor the operating institutions of the supervised markets or by any other persons, natural or legal, upon the occurrence of any irregularity to be investigated under the terms of the relevant Decree-Law, for the purpose of verifying the occurrence of illicit acts. The broad spectrum of SUSEP's activities includes its regulatory powers as an executive body for the guidelines of insurance policies and mutualist asset protection established by the CNSP, acting as a supervisory body for the National Private Insurance System, in line with the registration, regulatory, supervisory and sanctioning responsibilities defined in the Decree-Law, which do not exclude the powers of the Central Bank of Brazil and the Securities and Exchange Commission to act in these areas, but in their respective segments of activity, in subordination to the National Monetary Council (CMN). It is important to emphasize the preference for electronic citation, which is consistent with the search for procedural efficiency, as well as the possibility of applying precautionary measures, such as the removal or replacement of service providers, in situations that give rise to serious suspicions. It is also imperative to recognize the provision for the application of warnings for minor infractions, the carrying out of administrative interventions and, ultimately, the revocation of licenses, practices that aim to maintain order and legality within the scope of regulated activities. The robustness of this legislation reflects the need for a balance between the protection of collective interests and the accountability of agents who perform administrative functions in entities under the aegis of the Complementary Law. Furthermore, the Complementary Law introduced mechanisms for adjusting conduct, with the use of terms of commitment to which those investigated may be subjected during sanctioning processes. Among the main changes in the scope of sanctions provided for in the Complementary Law in question, the creation of stricter penalties stands out, involving the application of administrative fines with high values, which can reach up to R$ 35 million, twice the value of the contract or irregular operation, twice the damage caused to consumers or three times the economic gain obtained illegally.[12]. In cases of recurrence of the aforementioned practices, fines of up to three times the established amounts may now be applied, in accordance with CNSP criteria. Additionally, penalties of suspension or disqualification of administrators, for periods of 2 to 20 years, may be applied depending on the severity of the violation, in cases of poor technical or financial management of business, or when there is damage to the liquidity, solvency or integrity of the supervised institutions. They are also applicable in situations of risk incompatible with the operations regulated by SUSEP, contribution to indiscipline in the markets or compromise of the stability of the National Private Insurance System, the National Capitalization System or the open supplementary pension market. SUSEP may also intervene when there are obstacles to the assessment of the real financial or equity situation of the operations or severe impact on the continuity of the activities of these systems and markets. The new regulations, which set forth the consequences of non-compliance with prohibitions, summons, orders and requests issued by the Superintendence of Private Insurance (SUSEP), establish that failure to comply with these orders will result in the imposition of a penalty, which will be calculated based on the daily frequency of the delay or non-compliance. The amount of this penalty will be determined by the greater of one thousandth of the total revenue, whether individual or consolidated, of the prudential group, as outlined by the National Council of Private Insurance (CNSP) and related to the fiscal year prior to the application of the sanction, or the fixed amount of R$100,000.00. It is important to emphasize that the fine must be duly paid to SUSEP within 10 days from the date of the summons for payment. It should also be noted that the application of this pecuniary penalty does not exempt the competent authority from initiating administrative proceedings, nor from imposing other sanctions provided for in the legal system embodied in the relevant Decree-Law. Thus, the robustness of the legal framework that aims to ensure the effectiveness of regulations, preserving order and discipline within the scope of regulatory activity, is evident. The Complementary Law, in accordance with the provisions of Decree-Law No. 73/66,It also explicitly establishes the joint liability of directors, administrators, managers and members of the fiscal councils of regulated entities, which include insurance companies, insurance cooperatives and mutual asset protection administrators, for any losses caused to third parties, notably due to non-compliance with legal regulations, such as the creation of mandatory reserves. In line with this guideline, among the measures implemented, we highlight the initiation of administrative sanctioning proceedings whenever there is evidence of the practice of infractions or irregularities, demonstrating a proactive and supervisory stance by the regulatory entity. It is important to note, even in the case of joint and several liability, the individualization of the conduct of each of the accused in the indictments when opening the sanctioning proceedings. This is a constitutional guarantee inherent to due process, as established in article 5, LIV, of the Constitution, and a logical consequence of the principles of full defense and adversarial proceedings (item LV). In other words, the description of the prohibited conduct in a concrete and individualized manner is a necessity inherent to the principle of subjective liability of the accused, and even joint and several liability is incompatible with an abstract and generic description of unlawful behavior. In this context, it would be wrong to imagine the prospect of attributing an accusation to any manager based on the presumption of joint and several liability for the unlawful act, without any correspondence with documentary evidence and subjective element of the conduct, much less adherence that allows inferring willful or negligent behavior, according to the terms of the sanctioning type applicable to the case and the circumstances of the offense. In fact, joint and several liability in the context of administrative sanctioning law should not be confused with joint and several liability in the sphere of civil law. For these reasons, it is not feasible to automatically include managers from the perspective of joint and several liability without prior investigation involving the subjective element of conduct. Regarding the determination of the subjective element to define joint and several liability, the precedent paradigm of Ruling No. 6228/2017 stands out.[13]within the scope of the Appeals Board of the National System of Private Insurance, Open Private Pensions and Capitalization (CRSNSP), in the context of an administrative appeal against a decision by SUSEP, in which the following understanding was established: “In fact, § 5 of art. 2 of CNSP Resolution No. 243/11 grants the option of punishing the director. This provision states that 'SUSEP may consider as the agent responsible for the alleged infraction, in the case of a natural person, to the extent of his/her culpability, the holder of an office' of administrator who, 'provenly, contributes to the commission of the infraction, or fails to prevent its commission, when he/she could have acted to avoid it'. In art. 10 of the same Resolution, proportionality is recommended between the type and extent of the penalty and the severity of the infraction and its effects. And, in § 1, it is determined that, when the sanction was applied to a natural person, 'the judging authority will consider his/her culpability'. These rules must be interpreted strictly. In these proceedings, at no time was it demonstrated or proven that the appellant acted to commit the irregularity that gave rise to the present proceedings.” Continuing with the analysis of the culpability of an insurance company director, the aforementioned precedent states, in the Rapporteur’s vote, that the mere fact of holding the position of director does not make the director responsible for everything that may happen in the company’s day-to-day activities, transforming him into a kind of “insurance scapegoat”. In fact, the aforementioned vote emphasizes that: “The exercise of the position makes the director responsible for the acts of his employees, but only within the scope of civil liability. If an employee commits an irregular act or an act that harms someone, the director may even be held liable; but only civilly. Any penalty resulting from the practice of an unlawful act can only affect the person who actually committed it, and the director cannot be punished due to the act of another person, due to the constitutional principle that the penalty should not go beyond the person of the offender.” Still regarding the analysis of the subjective element in joint and several liability, the leading vote of the CRSNSP Ruling 6228/2017, citing the work of Fábio Medina Osório[14], emphasizes that the consequence of applying the principles of culpability and personal nature of the sanction “is the fact that there is no solidarity in the field of illicit acts. In Criminal Law, as in Administrative Sanctioning Law, the punishment applied to a co-author offender does not benefit the other co-authors. Each one is responsible for his/her own act and receives an individualized penalty according to his/her degree of participation.” Regarding the characterization of the circumstances of the infraction, the National Financial System Appeals Council (CRSFN), in a judgment that established a relevant precedent on the subject (Judgment No. 150/2023)[15], dealing with the specific analysis of the sanctioning process originating from the CVM, established the understanding that, as such, they should be understood, “in analogy to the judicial circumstances adopted in criminal law, those factors that do not constitute the offense, but that influence its severity. Examples of such circumstances would be the state of the agent, the conditions and manner of acting, the means used, time and space factors, among others. Such elements, as contingent, are not of the essence of the offense type. Consequently, their presence is not capable of invalidating the materiality of the criminal conduct or even the guilt of the agent. More than that, such circumstances do not affect the set of evidence and proof collected in the records. They only serve to examine the degree of guilt of the agent and the reprehensibility of the conduct for the purposes of sentencing.” Notably, it is a question of evaluating, in the sentencing examination, the application of aggravating and mitigating factors based on the determination of the base sentence. In light of the context of insurance sector regulation and the actions of the Superintendence of Private Insurance (SUSEP), it is imperative to highlight the innovations introduced by the Complementary Law in force, which establishes the application of daily fines that can reach the amount of up to R$100,000.00 or one thousandth of the total revenue, in case of non-compliance with the determinations or summons issued by that agency. These changes aim, above all, to strengthen the supervision exercised by SUSEP, increasing the accountability of the parties involved and, consequently, ensuring greater protection for consumers, all while preserving the stability of the insurance market and mutual asset protection in Brazil. In addition, the aim is to foster a business environment that is safer and more reliable. It is important to emphasize that SUSEP, from now on, has expanded oversight powers, with mutual asset protection operations being included in its scope of action. In this context, the superintendence is authorized to call extraordinary meetings and to apply preventive measures aimed at ensuring the stability of operations under its supervision. The new legislation, as already stated in a similar way in the Decree-Law73/66,establishes free access by duly accredited auditors and employees of the supervisory body to insurance companies, insurance cooperatives, mutual asset protection operations administrators and reinsurers. Such professionals have the prerogative to request and seize books, technical notes, information and documents relevant to the exercise of their functions. Furthermore, any obstacle that prevents compliance with the established objectives will be considered as an impediment to supervision, giving rise to the application of the penalties provided for in the relevant Decree-Law. Considering that the Complementary Law grants a significant increase to the sanctioning power attributed to SUSEP, the expectation is that supervision will be more efficient, with a concomitant reduction in cases of fraud and harmful practices that may tarnish the sector. Furthermore, an increase in regulatory predictability is foreseen, which undoubtedly contributes to ensuring greater security and stability in the insurance market. Impacts of Implicit Prohibition The analysis of the evolution of the regulatory framework in the insurance sector, in light of Complementary Law No. 213/2025, reveals a deliberate movement towards the consolidation of standards that ensure legality and predictability in the regulatory environment. In a context in which legal certainty is fundamental, the aforementioned Law stands as a comprehensive response to the need for clarity and regulatory rigor, establishing guidelines that limit the discretion of regulatory authorities and promote transparency. In this sense, the Complementary Law not only reiterates the importance of legality, but also introduces mechanisms that aim to prevent delegalization, a practice that, over time, has generated uncertainty and insecurity in the market. It is important to note that Article 11 of the original bill, which provided for the creation of 26 new positions in the structure of Susep, was vetoed due to constitutional issues related to the creation of public positions. Complementary Law No. 213/2025, in turn, directly incorporates into its text provisions that were previously subject to sub-legal regulation, which, in turn, strengthens predictability for market operators. As a result, the State's punitive power is exercised in a more cohesive manner and linked to constitutional principles, preventing sanctions from being imposed based on lower-ranking rules that do not meet the requirements of the Constitution. In this context, the clear classification of administrative infractions and the definition of proportional sanctions are innovations that ensure greater legal certainty and confidence in the system. Furthermore, the regulation of insurance operations and the accountability of directors and fiscal advisors, as set out in the Complementary Law, illustrate a commitment to governance and ethics in the sector. These guidelines not only promote more transparent management, but also establish standards that make it difficult for regulators to engage in abusive or arbitrary practices. The Complementary Law thus presents itself as a bulwark of legality, in line with the contemporary demands of a market that demands predictability and stability. Furthermore, the emphasis on the governance of regulated entities By directly addressing fundamental issues in legislation, the Complementary Law neutralizes the possibility that sub-legal practices are used to circumvent the principles of legality and legal reserve, ensuring that regulation remains within constitutional limits. On the other hand, the transition to a more formalized model raises challenges that must be carefully managed by regulators and regulated parties. Adapting to the new requirements requires a coordinated effort to ensure that the innovations introduced by the Complementary Law effectively translate into concrete benefits for the market and consumers. The success of this transition will depend, to a large extent, on the ability of the agents involved to adapt to a stricter regulatory scenario, without compromising market dynamics. In conclusion, Complementary Law No. 213/2025 not only advances in the consolidation of a clearer and more predictable regulatory framework, but also represents a decisive step in the protection of consumer rights and the promotion of a more stable business environment. The advances provided by this legislation are fundamental for the construction of a regulatory system that meets the demands of the contemporary insurance sector, reflecting the commitment to legality and transparency as essential pillars for strengthening the market. Conclusion Regarding the principle of administrative legality, in the field of administrative sanctioning law, it is worth recalling the paradigmatic judgment of the Superior Court of Justice, when the following guideline was established:[16]: “The institution of an infraction and imposition of a penalty based on an infra-legal act - Ordinance - violates the principle of legality, since “only the law, in its formal and material sense, can describe an infraction and impose sanctions”. In fact, the principle of legality, with its unfolding in the typicality, finds resonance in the democratic rule of law, and in due process of law, all enshrined in articles art. 179, I and 5º, LIV, respectively, of the Constitution of the Federative Republic of Brazil. In this context, it is not surprising that Complementary Law No. 213/2025 must necessarily conform to the dictates of the Constitution of 88, as well as decrees Decree-Law No. 73/1966 and Decree-Law No. 261/1967, as well as laws Complementary Law No. 109/2001 and Complementary Law No. 126/2007[17]. In fact, the Superior Court of Justice's understanding is unanimous that[18]: “ordinances are not suitable instruments for imposing fines, since they violate the constitutional principle of the reserve of law by contemplating penalties. The definition of infractions and the imposition of administrative sanctions, after the validity of the 1988 Constitution, can only arise from law in the formal sense. Furthermore, as a hierarchically inferior normative act, the purpose of ordinances is to clarify legal norms to be observed by the Administration, without the need to restrict or expand legal provisions. Therefore, ordinances are not intended to fill gaps and omissions in the law and, thus, cannot add material content to the regulated norm, and must be limited to the purpose of facilitating the application and execution of the law that governs the matter. (...)”.[19] The recent changes covered by the Complementary Law represent a significant effort to modernize the National Private Insurance System, introducing greater flexibility and legal certainty to the sector. The regulation of insurance cooperatives and mutualist asset protection are examples of how legislation can be expanded with the approval of the Complementary Law, in order to cover issues and institutes that actually exist, but were previously omitted from the legislation. The sub-legal regulation of fundamental issues, without support from formal law, compromises the legitimacy of the State's punitive power by violating the principles of legality, typicality and legal reserve. In the context of the insurance market, this can generate legal uncertainty, inequality in the application of rules and fragility of administrative infractions. Complementary Law No. 213/2025 represents a significant advance by consolidating in the legal text provisions that reduce dependence on sub-legal norms, reinforcing alignment with the Democratic Rule of Law and promoting greater balance between the power of the State and the rights of those regulated. The changes positively affect the national insurance system by guaranteeing consumer security, through the attribution of sanctioning and inspection powers to SUSEP, as well as by defining the types of cooperatives that can operate in the market and how they should operate, in addition to filling other legal gaps regarding insurance cooperatives and mutualist asset protection. Despite the progress, implementing the changes presents challenges for operators and regulators, requiring investments in training and operational adjustments. As the rules are implemented and evaluated, these changes are expected to strengthen the insurance sector in Brazil, promoting its expansion and alignment with international regulatory standards. Author: Fabio Medina Osorio References CENTRAL BANK OF BRAZIL. Credit Cooperatives. Available at: https://www.bcb.gov.br/estabilidadefinanceira/cooperativacredito. Accessed on: December 24, 2024; CÔRTE REAL, Maria Manuela; CRUZ ALVES, Francisco José; FARINHA PEREIRA, Eduardo. The Insurance Sector: Evolution and Perspectives. [sl]: [sn], [sd]. Available at: https://purl.sgmf.pt/COL-MF-0064/1/COL-MF-0064_master/COL-MF-0064_pdf/capitulo%20VII.pdf. Accessed on: January 21, 2025; DOBBYN, John F.; FRENCH, Christopher C. Insurance Law in a Nutshell. 5. ed. St. Paul: West Academic Publishing, 2016; ENTERRIA, Eduardo Garcia. Delegated legislation, regulatory power and judicial control, Madrid: Civitas, 3. ed., 1998. p. 220/225; FISCHER, James M.; KEETON, Robert E.; WIDISS, Alan I. Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices. 2nd ed. West Academic, 2017; MACHADO, Hendel Sobrosa. Controversial aspects of the credit insurance contract in comparative law. Available at: https://www.academia.edu/6556530/Aspectos_polemicos_do_seguro_de_credito_no_direito_comparado. Accessed on: January 17, 2025; MIRAGEM, Bruno. The essential contribution of comparative law to the formation and development of Brazilian private law. Revista dos Tribunais, São Paulo, v. 1000, p. 157-190, Feb. 2019; OLIVEIRA, José Inácio Ribeiro Lima de. The legality of the role of the Superintendence of Private Insurance in the inspection of marginal insurance and open supplementary pension entities. Brazilian Journal of Risk and Insurance, Rio de Janeiro, v. 11, n. 20, p. 225-276, Oct. 2015/Mar. 2016. OSÓRIO, Fabio Medina. Administrative Sanctioning Law. 9th ed. New York: Courts Review Publishing House, 2023; OSÓRIO, Fábio Medina. Typicality and Legality of Infractions and Sanctions in Administrative Sanctioning Law. Available at: https://www.medinaosorio.com.br/artigos/medina-osorio-exclusivo-tipicidade-e-legalidade-das-infracoes-e-sancoes-no-direito-administrativo-sancionador. Accessed on: January 26, 2025; RUSSO, Claudio. The sanctioning system in the health department: principle and guardianship. Dialoghi di Diritto dell'Economia, September 2023. Available at: https://www.dirittobancario.it/wp-content/uploads/2023/09/2023-Russo-Il-sistema-sanzionatorio-nel-settore-assicurativo.pdf. Accessed on: 21 Jan. 2025. SCHMITT, Daniel. On the punishability of the responsible agent in the private insurance market. Insurance Notebooks, v. 33, p. 34-46, 2013; STIGLITZ, Rubén S. Derecho de Seguros I. 3rd ed. Buenos Aires: Abeledo-Perrot, 2001. STIGLITZ, Rubén S. Derecho de Seguros II. 3rd ed. Buenos Aires: Abeledo-Perrot, 2001. PEREIRA, Alexandre Libório Dias. The Legal Construction of the Single Insurance Market. In: Studies dedicated to Professor Doctor Mário Júlio de Almeida Costa. Catholic University Press, 2002, p. 75-109; Footnotes [1]OLIVEIRA, José Inácio Ribeiro Lima de. The legality of the role of the Superintendence of Private Insurance in the inspection of marginal insurance and open supplementary pension entities. Brazilian Journal of Risk and Insurance, Rio de Janeiro, v. 11, n. 20, p. 225-276, Oct. 2015/Mar. 2016. [2]As a paradigmatic judgment, one can recall the recent judgment of the Federal Supreme Court involving administrative misconduct within the scope of general repercussion 1199, when that court established the applicability of the constitutional principles of sanctioning administrative law to that field and, even, relevant constitutional guarantees to those administered and under its jurisdiction. In addition to this, it should be noted that the jurisprudence of administrative courts such as the Securities and Exchange Commission itself establishes the incidence of the constitutional principles of sanctioned administrative law, as can be seen in its jurisprudence: CVM SANCTIONING ADMINISTRATIVE PROCESS No. 12/03; CVM SANCTIONING ADMINISTRATIVE PROCESS No. 19957.002528/2020-02. In this same context, the Superior Court of Justice, likewise, applies constitutional rules and guarantees of administrative sanctioning law within the scope of the financial market and the capital market, as can be seen from its case law: STJ. ARESP No. 602,480 - DF (2014/0273383-4), Rapporteur: Minister Napoleão Nunes Maia Filho, Judgment Date: November 17, 2020. Unanimous decision; STJ. AgInt in AgInt in RESP No. 1945137 - DF (2021/0191481-3), Rapporteur: Minister Herman Benjamin, Judgment Date: April 26, 2022; STJ. RESP No. 1,255,987 - PR (2011/0061307-1), Rapporteur: Minister Herman Benjamin, Judgment Date: 03/01/2012; STJ. ARESP No. 133,424 - SC (2012/0037539-2), Rapporteur: Minister Maria Isabel Gallotti, Judgment Date: 02/18/2014. In the same direction, the National Financial System Appeals Council also upholds the principle of legality of infractions and sanctions within the scope of administrative sanctioning law, as can be seen from the following precedent: JUDGMENT CRSFN 174/2024 (Process 18600.053500/2024-26 - BCB 271051), Rapporteur: Ilene Patrícia de Noronha Najjarian, 489th Session, Judgment Date: 12/3/2024, Electronic Service Bulletin: 12/19/2024. [3]ENTERRIA, Eduardo Garcia. Delegated legislation, regulatory power and judicial control, Madrid: Civitas, 3. ed., 1998. p. 220/225. [4]ARE: 1401225 RJ, Rapporteur: PRESIDENT, Judgment Date: 10/05/2022, Publication Date: ELECTRONIC PROCESS DJe-s/n DISCLOSED 10/06/2022 PUBLISHED 10/07/2022. [5]The prohibition of delegalization, as a result of the advent of Complementary Law No. 213/2025, must be understood, essentially, in accordance with the interpretation in light of the jurisprudence of the higher courts, in line with the 1988 Constitution. In this sense, the aforementioned Complementary Law merely reflects an advance in the normative system after the judgment of Theme 1,199 of general repercussion in the scope of administrative improbity, a judgment that meant new paradigms for Brazilian administrative sanctioning law. [6]EREsp: 875163 RS 2009/0242997-0, Rapporteur: Minister MAURO CAMPBELL MARQUES, Judgment Date: 06/23/2010, S1 - FIRST SECTION, Publication Date: DJe 06/30/2010. [7]EDcl in REsp: 722403 RS 2005/0020077-2, Rapporteur: Minister MAURO CAMPBELL MARQUES, Judgment Date: 11/17/2009, T2 - SECOND PANEL, Publication Date: --> DJe 11/27/2009. [8]REsp: 2087667 RJ 2023/0261697-5, Rapporteur: Minister SÉRGIO KUKINA, Judgment Date: 08/20/2024, T1 - FIRST PANEL, Publication Date: DJe 08/26/2024. [9]ADI: 2893 PE, Rapporteur: Min. NUNES MARQUES, Judgment Date: 06/17/2024, Full Court, Publication Date: ELECTRONIC PROCESS DJe-s/n DISCLOSED 07/02/2024 PUBLISHED 07/03/2024. [10]As recorded in the CVM precedent. PAS: 19957.008816/2018-48, Rapporteur: João Pedro Barroso Do Nascimento, Judgment Date: 07/10/2018. Unanimous decision., the sanctioning administrative law of the capital market allows the technique of general clauses, but requires respect for and obedience to the principle of legality. [11]OSÓRIO, Fábio Medina. Typicality and Legality of Infractions and Sanctions in Administrative Sanctioning Law. Available at: https://www.medinaosorio.com.br/artigos/medina-osorio-exclusivo-tipicidade-e-legalidade-das-infracoes-e-sancoes-no-direito-administrativo-sancionador. Accessed on: January 26, 2025. [12]Regarding the prohibition of objective liability in the insurance market, see the article by SCHMITT, Daniel. On the punishability of the responsible agent in the private insurance market. Cadernos de Seguro, v. 33, p. 34-46, 2013. The author addresses the legality of infractions and sanctions within the scope of SUSEP, highlighting the transfer of responsibility for fines to individual agents, introduced by LC 126/2007. He criticizes the lack of clear criteria for accountability, the absence of adequate motivation in administrative acts and the application of penalties based on hierarchical position, without proof of causal link or intent. He defends respect for the principle of personal liability and the need for detailed investigation to avoid excessive punishment. He concludes that unfounded punishments violate rights and may be illegal and arbitrary. In this sense, they may violate principles of legality and personal liability of infractions and sanctions. In fact, as stated in the workOSÓRIO, Fábio Medina. Administrative Sanctioning Law. 9th ed. São Paulo: Editora Revista dos Tribunais, 2023, the principle of personal sanction matters in subjective liability. This type of liability is incompatible with the presumption of liability. See the following bibliography: DOBBYN, John F.; FRENCH, Christopher C. Insurance Law in a Nutshell. 5th ed. St. Paul: West Academic Publishing, 2016; MACHADO, Hendel Sobrosa. Controversial aspects of the credit insurance contract in comparative law. Available at: https://www.academia.edu/6556530/Aspectos_polemicos_do_seguro_de_credito_no_direito_comparado. Accessed on: Jan. 17, 2025; FISCHER, James M.; KEETON, Robert E.; WIDISS, Alan I. Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices. 2nd ed. West Academic, 2017; STIGLITZ, Rubén S. Insurance Law. 3rd ed. Buenos Aires: Abeledo-Perrot, 2001; STIGLITZ, Rubén S. Insurance Law II. 3rd ed. Buenos Aires: Abeledo-Perrot, 2001; PEREIRA, Alexandre Libório Dias. The Legal Construction of the Single Insurance Market. In: Studies dedicated to Professor Doctor Mário Júlio de Almeida Costa. Catholic University Press, 2002, p. 75-109; MIRAGEM, Bruno. The essential contribution of comparative law to the formation and development of Brazilian private law. 1000, p. 157-190, Feb. 2019; CÔRTE REAL, Maria Manuela; CRUZ ALVES, Francisco José; FARINHA PEREIRA, Eduardo. The Insurance Sector: Evolution and Perspectives. [sl]: [sn], [sd]. Available at: https://purl.sgmf.pt/COL-MF-0064/1/COL-MF-0064_master/COL-MF-0064_pdf/capitulo%20VII.pdf. Accessed on: Jan. 18, 2025; RUSSO, Claudio. The sanctions system in the insurance sector: principles and protection. Dialogues of Economic Law, September 2023. Available at: https://www.dirittobancario.it/wp-content/uploads/2023/09/2023-Russo-Il-sistema-sanzionatorio-nel-settore-assicurativo.pdf. Accessed on: January 19, 2025. [13]JUDGMENT CRSNSP 6228/2017 (Case 15414.100639/2012-41- CRSNSP Appeal No. 7191), Rapporteur: André Leal Faoro, 245th Session, Judgment Date: 09/11/2017, Electronic Service Bulletin: 11/01/2017.   [14]OSÓRIO, Fábio Medina, “Sanctioning Administrative Law”, Ed. RT, 3rd ed. 2009, p. 343. [15]JUDGMENT CRSFN 150/2023, Process 10372.100090/2022-87 - CVM 19957.006509/2019-11 (RJ2019/04665), Rapporteur: Renato da Câmara Pinheiro, 476th Session, Judgment Date: 10/11/2023, Electronic Service Bulletin: 03/07/2024. [16]STJ. AG.REG. in RE with AG No. 1,046,163- DF, Rapporteur: Minister Napoleão Nunes Maia Filho, Judgment Date: 11/17/2020. Unanimous decision. [17]In the same sense, including in the environmental field, the Superior Court of Justice has understood that: “In compliance with the Principle of Legality, the application of an environmental fine is not admissible without express provision in law strictu sensu, so that motivation exclusively in Regulatory Decrees or Ordinances is not admissible.” (STJ - AgRg in REsp: 1290827 MG 2011/0264879-5, Rapporteur: Napoleão Nunes Maia Filho, Judgment Date: 10/27/2016. Unanimous decision.) [18]STJ. AgInt in AgInt in RESP No. 1945137 - DF (2021/0191481-3), Rapporteur: Minister Herman Benjamin, Judgment Date: 04/26/2022. Unanimous decision. [19]On the contrary, it can be seen that the Supreme Federal Court admits infra-legal regulation when it is in accordance with the legal norm, as can be seen from the following precedent: STF. AG.REG. in RE with AG 1.046.163 - DF, Rapporteur: Minister Dias Toffoli, Judgment Date: 08/08/2017. Unanimous decision. In this case, Decree-Law number 395/1938 was received by the Constitution of 1988, exactly like Decree-Law no. 73/1966.  

Abstract The monocratic decision rendered by Minister Flávio Dino in ADPF 854 marks a significant legal milestone by establishing parameters for transparency and traceability in the handling of parliamentary amendments in Brazil. However, the decision also raises questions about its practical implementation, the limits of judicial intervention in budgeting, and the challenges of aligning normative requirements with political realities. This article explores the constitutional foundations, practical implications, and potential challenges of this historic decision. Introduction Budget management in Brazil has historically been plagued by opacity and inefficiency, particularly regarding the execution of parliamentary amendments. ADPF 854, culminating in an innovative decision by the Supreme Federal Court (STF), directly confronts these distortions by declaring the unconstitutionality of practices associated with the so-called "secret budget" and establishing rigorous parameters for executing parliamentary amendments. While the STF's solution is legally robust, it faces significant political and institutional challenges. Implementing new rules—such as the requirement for full traceability and the limitation of parliamentary amendment growth—necessitates structural changes in a political system historically resistant to reform. Foundations and Advancements of the Decision 2.1. Transparency and Traceability The decision reinforces the constitutional principles of transparency and traceability, ensuring that the use of public funds is thoroughly documented and accessible. These principles, enshrined in Articles 37 and 163-A of the Federal Constitution, are essential for: Preventing corruption and mismanagement. Facilitating public oversight of budget execution. Strengthening the legitimacy of public expenditures. The STF mandated that all parliamentary amendments be meticulously documented, identifying the requesting parliamentarian and the ultimate destination of funds. Requiring this information to be published on the Transparency Portal represents undeniable progress. 2.2. Limits on Legislative Power The decision also underscores the principle of separation of powers by imposing limits on the Legislature's influence over the public budget. The expansion of parliamentary amendments in recent years—particularly RP 8 (committee amendments) and RP 9 (rapporteur amendments)—has led to a legislative overreach, weakening the Executive's capacity to plan and execute public policies. By capping the growth of parliamentary amendments in line with the discretionary expenses of the Executive or the spending cap, the STF rebalances powers and reinforces fiscal responsibility. A Critical Perspective: Potential Challenges and Uncertainties Despite its merits, the ADPF 854 decision is not without criticism. Certain practical and theoretical issues remain unresolved, requiring critical reflection. 3.1. Feasibility of Implementation While the new rules set a high standard of control, their implementation will depend on collaboration among various institutional actors, such as the National Congress, the Federal Court of Accounts (TCU), and the Office of the Comptroller General (CGU). The historical political resistance to budgetary reform raises doubts about the feasibility of such profound change in the short term. Key questions include: How can it be ensured that all information is accurately entered into the Transparency Portal, particularly in a system with thousands of municipalities benefiting from amendments? Is there sufficient technical capacity in oversight bodies to monitor compliance with the new requirements? 3.2. Judicialization of the Budget The decision also expands the STF's role in overseeing the public budget. While necessary to address identified unconstitutional practices, this could be seen as excessive judicial intervention. Judicial involvement in budgetary matters, traditionally reserved for the Executive and Legislative branches, could lead to political tensions and impair governance. This raises questions about: The legitimate scope of STF involvement in budgetary matters. Risks of excessive centralization of decision-making power within the Judiciary. 3.3. Limits on Parliamentary Amendments While necessary, imposing limits on the growth of parliamentary amendments faces significant political resistance. Legislators are likely to oppose measures that constrain their autonomy in allocating resources, especially in Brazil's highly fragmented political system. Reflections and Recommendations The ADPF 854 decision is a necessary milestone, but its effectiveness will depend on complementary adjustments and a well-defined implementation strategy. Measures that could enhance the decision's impact include: Strengthening inter-institutional governance: Establishing a permanent mechanism for dialogue among the Executive, Legislative, Judiciary, and oversight bodies to monitor the implementation of new rules. Technological enhancement: Investing in modernizing the Transparency Portal and systems like Transferegov.br to ensure all information is easily accessible and verifiable. Capacity building for public agents: Offering training for managers and officials, particularly at the municipal level, to ensure compliance with new standards. Conclusion The decision issued by Minister Flávio Dino in ADPF 854 represents significant progress in promoting transparency, traceability, and efficiency in budget management. However, the practical implementation of these directives will face political and technical challenges that cannot be ignored. While the decision reaffirms the STF's role as the guardian of the Constitution and republican principles, it also highlights the inherent tensions of judicializing public budgeting in a fragmented political system like Brazil's. The success of this reform will depend on joint efforts among the branches of government, cultural shifts in public resource management, and robust public engagement. If properly implemented, ADPF 854 could herald a new era of fiscal responsibility and integrity in public administration. However, the path to this future demands constant vigilance, institutional commitment, and, above all, strong societal engagement. Author: Fábio Medina Osório References Federal Constitution of 1988 Complementary Law No. 101/2000 (Fiscal Responsibility Law) Complementary Law No. 210/2024 Monocratic decision by Minister Flávio Dino in ADPF 854, dated December 2, 2024

Introduction The 1988 Brazilian Constitution represents a turning point in the history of administrative law, embedding it firmly within the constitutional framework and redefining its role in the governance of public administration and the protection of constitutional values. This transformation did not occur in isolation but was preceded by intense scholarly reflection and advocacy for a broader conceptualization of administrative law. Among the most significant voices in this dialogue was Miguel Seabra Fagundes, whose work underscored the urgency of integrating administrative law into the constitutional order as a substantive and material discipline. Seabra Fagundes’s reflections, published during the preparatory period leading up to the drafting of the Constitution, highlighted the interplay between constitutional law and administrative law. While constitutional law establishes the foundational principles and structure of the state, administrative law operationalizes these principles in the daily interactions between the state and its citizens. He argued that administrative law, when viewed solely as a procedural mechanism, failed to fulfill its potential as a tool for promoting accountability, safeguarding public assets, and protecting individual rights against the excesses of state power. This perspective aligned with the aspirations of the 1988 Constitution, which sought to dismantle the remnants of authoritarianism and establish a legal framework grounded in democratic principles, social justice, and the rule of law. By incorporating administrative law directly into the constitutional text, the framers of the Constitution elevated its status from a mere technical instrument to a central pillar of constitutional governance. The work of Seabra Fagundes served as a critical foundation for this paradigm shift. His emphasis on the importance of constitutionalizing administrative law resonates throughout the 1988 Constitution, which enshrined principles such as legality, impersonality, morality, publicity, and efficiency as binding norms for all public administration. These principles are more than formal requirements; they represent substantive commitments to transparency, fairness, and the effective use of public resources. In addition, Seabra Fagundes advocated for a broader understanding of administrative law as a mechanism for safeguarding public integrity. He emphasized the need for clear accountability mechanisms, including shared responsibility between public servants and the state in cases of misconduct. His proposals for the creation of deliberative bodies and his defense of meritocratic public service hiring processes were prescient contributions to the debates that shaped the constitutional framework. The constitutionalization of administrative law under the 1988 Constitution reflects both the theoretical insights of scholars like Seabra Fagundes and the practical need to reform Brazil’s public administration. The Constitution did not merely codify procedural rules; it also imbued administrative law with a material dimension, allowing it to serve as a vehicle for protecting constitutional values, promoting social justice, and ensuring the proper functioning of public administration. This article examines the constitutionalization of administrative law from a contemporary perspective, recognizing its formal and material dimensions and its evolution into a substantive branch of constitutional governance. The discussion begins by analyzing the foundations laid by thinkers like Seabra Fagundes, whose ideas helped shape the role of administrative law in the constitutional order. It then explores the dual dimensions of administrative law—formal and material—highlighting their significance in regulating public administration and protecting constitutional values. Finally, the article delves into the principles governing public administration, demonstrating how they contribute to a modern and effective legal framework that transcends traditional boundaries and responds to the challenges of contemporary governance. The Foundations of Administrative Law in the Constitutional Order Administrative law’s elevation in the 1988 Constitution is a testament to its critical role in modern governance. By embedding principles such as accountability, legality, and efficiency into the constitutional text, the framers ensured that administrative law would serve as both a framework for regulating public administration and a mechanism for safeguarding public interests. These principles, enshrined in Article 37 of the Constitution, serve as a foundation for a legal system that balances state authority with the protection of individual rights and the promotion of collective welfare. The Constitution also introduced innovative mechanisms for ensuring accountability in public administration, including provisions for addressing administrative improbity (Article 37, §4º). These mechanisms demonstrate the substantive dimension of administrative law, allowing it to function as a guardian of constitutional values and a deterrent against misconduct. Through this framework, administrative law has become an essential tool for achieving the Constitution’s broader goals of transparency, social justice, and the rule of law. It operates not only as a regulatory instrument but also as a protector of the public interest, ensuring that public administration aligns with the principles and values enshrined in the constitutional order. Author: Fábio Medina Osório

Abstract: This article provides a comparative analysis of artificial intelligence regulatory frameworks established by the United States, the European Union, and Brazil. It evaluates each jurisdiction’s approach from a practical standpoint, focusing on the economic impact and technological progression facilitated by their respective regulatory models. The aim is to determine which framework may best foster an environment conducive to both innovation and the protection of fundamental rights, specifically in the context of Brazil’s growing tech ecosystem. Introduction The proliferation of artificial intelligence (AI) has sparked widespread economic interest, prompting numerous nations to enact specific regulatory frameworks aimed at balancing safety and innovation. The United States, European Union, and Brazil offer divergent approaches that reflect their unique economic and social priorities. This paper examines these regulatory models with an emphasis on identifying which has the highest potential to drive technological advancement and economic development, with particular attention to Brazil’s innovation ecosystem. As global demand for AI-driven activities rises—accelerated by the adoption of generative AI platforms—businesses are increasingly integrating AI to enhance productivity across industries. In this context, it becomes imperative to understand the regulatory pathways that various nations are pursuing to simultaneously stimulate innovation and ensure responsible AI usage. The transformative potential of AI across fields necessitates a critical examination of the newly implemented regulatory frameworks in the U.S. and EU, which serve as potential models for Brazil. The “fourth industrial revolution” represents a strategic opportunity for Brazil to achieve significant economic and technological gains by tapping into these evolving AI markets. To cultivate a regulatory environment that promotes creativity among innovators while ensuring effective fundamental rights protections, Brazil stands to benefit from a measured approach that combines flexibility with legal certainty. Accordingly, this article intends to provide a practical assessment of the recently established regulatory frameworks in the U.S. and EU and to evaluate Brazil’s own legislative efforts, specifically the Draft Bill No. 2,338/2024 currently under consideration in Congress.   United States: A Model of Regulatory Flexibility and Innovation Incentives The 2023 U.S. Executive Order on Artificial Intelligence adopts a broad, flexible framework to encourage innovation and competitiveness, while promoting safety in critical sectors. This model creates a regulatory environment that directly supports economic growth and technological development by implementing policies that minimize regulatory burdens, particularly in emerging and highly competitive industries. The American regulatory model offers several practical benefits to economic growth and technological advancement: Regulatory Flexibility: The absence of rigid restrictions enables startups and innovative companies to experiment with new AI applications without excessive regulatory barriers. This flexibility promotes agility, attracting investment and facilitating the rapid development of technological solutions. For Brazil, adopting a similar approach could invigorate the tech sector by fostering an environment conducive to continuous testing and evolution. Incentives for Innovation and Competitiveness: The Executive Order promotes growth within the AI workforce and aims to attract foreign talent, ensuring that the U.S. retains its position of leadership in AI. These policies can serve as a blueprint for Brazil, where efforts to attract talent and foreign investment in AI remain limited. The American approach enhances economic growth by encouraging small and medium-sized enterprises (SMEs) to participate actively in the AI sector, fostering a diverse and innovative economy. Emphasis on Security for Critical Sectors: While the American model is flexible in low-risk sectors, it maintains rigorous standards in areas such as defense and critical infrastructure. Emulating this approach could enable Brazil to support AI development in less sensitive sectors with minimal regulation, without compromising security in high-risk areas. European Union: Strict Protection and Compliance The European Union's AI Act is the first attempt at risk-based AI regulation, offering a formal, comprehensive framework focused on fundamental rights protection. This model emphasizes security and transparency, but its rigid compliance structure may impact the pace of innovation and economic growth. Challenges of the EU model for technological progress and economic development: Innovation Bureaucracy Risks: The strict compliance approach and mandatory audits for high-risk systems require financial and time resources that may discourage small businesses. Startups and small companies face greater difficulties meeting compliance demands, which can slow innovation and reduce competitiveness in the AI sector. In Brazil, adopting a similar model could hinder the growth of startups, which already struggle with bureaucracy and compliance costs. High Penalties for Violations: The AI Act imposes strict fines for infractions, encouraging accountability but also raising the risks for companies developing AI in regulated sectors. These sanctions aim to protect users but may deter new entrants into the AI market, particularly smaller companies without the capital to face hefty fines. In Brazil, such a model could significantly impact the economy, especially in a scenario where startups need a more welcoming regulatory environment to thrive. Transparency and Ethics as Priorities: The AI Act's requirements for bias audits and continuous compliance are positive in terms of rights protection but increase development costs and reduce companies' agility. While transparency and ethics are crucial, a more practical approach, like the U.S. model, might be more viable for promoting AI growth in Brazil, where tech companies face cost and efficiency challenges. Bill 2338/2023 in Brazil: A Hybrid Approach with Growth Potential Brazil's Bill 2338/2023 proposes regulation inspired by European and U.S. models, establishing a National Artificial Intelligence Authority (ANIA) to oversee the sector. The Brazilian proposal aims to balance innovation stimulus with rights protection but requires adjustments to maximize economic development and technological progress. For technological progress, the Brazilian model has characteristics that, with adjustments, could foster economic growth: Adaptable Flexibility: The bill lacks specific guidelines for audits and risk classification, but this initial flexibility could be advantageous, allowing regulations to evolve as the sector matures. This approach would enable Brazil to learn from challenges observed in other jurisdictions and adapt rules to the local AI market dynamics, encouraging economic growth with fewer entry barriers. Ethical Compliance with a Civil Rights Focus: The bill incorporates LGPD data protection, ensuring basic rights protection without the EU model's bureaucracy. This benefits startups by maintaining ethical responsibility without overburdening companies with complex compliance audits. For Brazil, a simplified but ethically guided approach could balance rights protection with AI growth. Need for Innovation and Competitiveness Incentives: While innovation is mentioned as a principle, the bill lacks clear policies to foster AI development, particularly for small and medium enterprises. Brazil could benefit from including financial and fiscal incentives, as well as training programs and talent attraction policies, similar to the U.S. model. Robust incentive policies are crucial to strengthening Brazil's AI sector and ensuring its significant contribution to the economy. 5) Pragmatic Comparison: Which Model Most Promotes Economic Growth United States: Innovation and Flexibility: High. Enables experimentation and adaptation. Rights Protection: Moderate-High. Focus on bias mitigation and civil rights audits. Competitiveness: High. Incentives for startups and talent attraction. Bureaucracy Risk: Low. Flexible guidelines in non-critical sectors. European Union: Innovation and Flexibility: Moderate. Strict restrictions limit flexibility. Rights Protection: High. Focus on ethics and transparency, with audits and penalties. Competitiveness: Low-Moderate. Rigid regulatory structure impacts agility and new entrants. Bureaucracy Risk: High. Significant compliance costs and bureaucracy. Brazil: Innovation and Flexibility: Moderate-High. Flexible model but lacks clear incentives. Rights Protection: Moderate. Based on LGPD, with less burdensome ethical compliance. Competitiveness: Moderate. Needs incentives and talent attraction policies. Bureaucracy Risk: Moderate. Still lacks regulatory clarity. 6) Conclusion: Which Model Allows Greater Technological Progress and Economic Development? Assessing the regulatory models of the U.S., EU, and Brazil, the practical analysis suggests the U.S. model offers the most significant potential for technological progress and economic development. Its regulatory flexibility and clear incentives for business growth allow companies to innovate rapidly while maintaining global AI competitiveness. The EU provides a robust protection system, but its strict compliance may hinder economic progress, especially for smaller businesses. Meanwhile, Brazil, with Bill 2338/2023, presents an opportunity to create a hybrid model but needs specific policies to encourage innovation and competitiveness. Adding financial and educational incentives to the bill could make Brazil an attractive hub for AI development, balancing security with economic progress. Ultimately, for Brazil to strike a balance between protection and growth, a pragmatic approach inspired by the U.S. model, complemented by ethical standards and local development incentives, would be the most promising path to fostering a robust and economically viable AI sector. Author: Fábio Medina Osório

Introduction Brazil’s Administrative Misconduct Law (Law 8.429/92), which was significantly reformed by Law 14.230/2021, remains one of the primary tools of the Brazilian State in the fight against corruption, public mismanagement, and violations of the principles governing public administration. However, the concept of administrative misconduct, as we have argued in our scholarly works and reflections, goes far beyond mere acts of corruption or illicit enrichment. It is a mechanism that encompasses severe dishonesty and gross inefficiency, analyzed from a constitutional perspective, within a broader framework of sanctioning administrative law. In this article, we propose an analysis of the decision by the Brazilian Supreme Court (STF) in ADI 4295, which reviewed the constitutionality of several provisions of Law 8.429/92, emphasizing the role of sanctioning administrative law in the misconduct regime. Based on our interpretation, we examine the decision in light of constitutional jurisprudence and its interaction with the principles of morality, legality, and efficiency, which are the central focuses of administrative misconduct in Brazil. The Constitutional Concept of Misconduct and the 2021 Reform Administrative misconduct, as set out in Article 37, §4º of the Brazilian Federal Constitution, requires public officials to conduct themselves with administrative probity and respect for the principles governing public administration, such as legality, impartiality, morality, publicity, and efficiency, with heightened standards. The concept of misconduct is not limited to corruption in its strict sense but also includes acts that, while not directly harming the public treasury, violate these principles and erode public trust in government institutions. The legislature has discretion to determine whether culpable acts should be penalized or not. The reform introduced by Law 14.230/2021 sparked controversy by eliminating the culpable forms of administrative misconduct, focusing instead on intentional conduct. In our view, this reform reflects a legitimate choice by the legislature within a democratic framework, prioritizing the punishment of more serious, intentional misconduct over negligent acts that, while harmful to the treasury, do not involve bad faith or direct intent on the part of the public official. The STF, when ruling on ADI 4295, upheld the constitutionality of this legislative choice, emphasizing that the Constitution allows the legislature the flexibility to define the scope of misconduct offenses. Therefore, by excluding culpable misconduct, the Brazilian legislature followed a trend of strengthening legal certainty and the strict principle of legality in sanctioning law. Sanctioning Administrative Law: Origin and Application in Administrative Misconduct Since the 1990s, we have advocated for the treatment of administrative misconduct as an offense within the scope of sanctioning administrative law. This branch of law, which has primarily developed in Europe and gained traction in Brazil through jurisprudential evolution, legislative reforms, and the strengthening of oversight mechanisms, seeks to punish administrative violations under a distinct legal regime, separate from criminal law, but governed by similar protective principles, such as proportionality, legality, and specificity. Sanctioning administrative law aims to protect values like morality, efficiency, and legality in public administration through the application of penalties that may be imposed directly by the judiciary or executive authorities, with strict adherence to principles that are symmetrical with criminal law. Administrative misconduct, although not necessarily a crime, falls within this framework, as it demands a strong state response to ensure the proper functioning of public administration and to maintain public trust in public officials. The 2021 reform reaffirms the administrative nature of misconduct offenses, consolidating the understanding that penalties for misconduct fall within the framework of sanctioning administrative law, even though procedurally they are handled in civil jurisdiction. The STF, in ADI 4295, reinforced this view by confirming the independence of administrative and criminal spheres, highlighting that misconduct penalties may be applied autonomously without the need for a criminal conviction. This further underscores the punitive-administrative nature of administrative misconduct. The Constitutionality of Penalties: Analysis of the ADI 4295 Ruling In ADI 4295, the STF examined the constitutionality of provisions in Law 8.429/92 that allow for the application of severe penalties, such as removal from office, suspension of political rights, and prohibition from contracting with the government, even without proof of financial damage to the public treasury. The STF was clear in affirming that the protection of administrative morality goes beyond safeguarding public finances; it also involves upholding the principles that govern public administration, particularly legality, impartiality, morality, and efficiency. In the opinion of Justice Marco Aurélio, the rapporteur, it was made explicit that penalties for administrative misconduct, contrary to the arguments made by the petitioner, do not necessarily depend on proof of harm to the public treasury. Misconduct, above all, is a violation of administrative principles, and its punishment serves to protect broader public interests, including public confidence in the State’s administrative apparatus. Additionally, the ruling reinforced the idea that the penalties provided for in Law 8.429/92 are independent of other legal domains, such as criminal and civil law. This means that even if the public official has not been convicted of a crime, they can still be sanctioned for administrative misconduct based on the criteria set forth in the law. The STF’s affirmation of this independence of spheres is one of the pillars of sanctioning administrative law, ensuring a swift and effective response to serious violations of official duties. Of course, this independence does not disregard the principle of non bis in idem. The Role of the Public Prosecutor and Judicial Oversight in Administrative Misconduct Another significant aspect of the ADI 4295 ruling was the discussion concerning the role of the Public Prosecutor’s Office in overseeing administrative misconduct cases. Law 8.429/92 provides that the Public Prosecutor’s Office, along with the Courts of Accounts, has the right and duty to oversee both administrative and judicial processes involving the investigation of misconduct, and may even initiate legal action and assist in investigating damages. The petitioner in this case argued that this provision violated the separation of powers by allowing the Public Prosecutor’s Office to intervene in administrative processes. However, the STF categorically affirmed that the involvement of the Public Prosecutor is a fundamental safeguard for ensuring impartiality and objectivity in fact-finding, even in administrative proceedings. According to the rapporteur, this oversight by the Public Prosecutor’s Office does not violate the separation of powers but rather strengthens control and transparency in the application of misconduct penalties. The involvement of the Public Prosecutor in misconduct cases is essential to ensure that investigations and sanctions are based on legal and technical criteria, thus mitigating the risk of political interference or arbitrary decisions. Judicial oversight was also reaffirmed as an important safeguard to ensure that sanctioning administrative law is applied fairly and proportionally, in accordance with constitutional principles. Extending Penalties to Legal Entities: Preventing Fraud and Protecting Public Assets ADI 4295 also raised an important issue regarding the application of misconduct penalties to legal entities controlled by public officials. Law 8.429/92 provides that companies in which a public official is a majority shareholder may be penalized with the prohibition of contracting with the government or receiving tax and credit benefits if the official has been convicted of misconduct. The constitutionality of this provision was challenged, but the STF upheld it as a legitimate and necessary measure to prevent fraud and ensure the effectiveness of misconduct penalties. The Court highlighted that applying penalties to companies controlled by public officials is essential to prevent these officials from using private companies as tools to circumvent the legal consequences imposed by law. The STF’s decision ensured that penalties are applied effectively and proportionally, protecting public assets against fraudulent schemes, without compromising the importance of the non bis in idem principle. One of the significant contributions of the reform brought by Law 14.230/2021 was the consolidation of the independence of administrative penalties from criminal law, while respecting the non bis in idem principle. By reaffirming the administrative nature of misconduct offenses and their autonomy from other legal spheres, the reform promoted by Law 14.230/2021 represented a major advancement, as it consolidated the independence of administrative and criminal spheres. The recognition that penalties for administrative misconduct are materially administrative and procedurally civil was reaffirmed by the Supreme Court in ADI 4295, strengthening the autonomy of sanctioning administrative law in relation to criminal law. This independence is essential to ensure that misconduct penalties are applied efficiently and swiftly, without depending on the outcome of criminal proceedings, which often take years to resolve. Sanctioning administrative law, as an autonomous branch of public law, aims to protect public administration from serious offenses that compromise the morality, legality, and efficiency of public services, without the need for criminal liability to be established. The STF’s ruling in ADI 4295 confirmed that administrative misconduct may be penalized autonomously, without the need for a prior criminal conviction. This is crucial for the effective functioning of control mechanisms in public administration, ensuring that public officials who violate the duties of probity are held accountable proportionately and promptly, regardless of the outcome of any related criminal proceedings. Furthermore, ADI 4295 reaffirmed that administrative penalties are not criminal in nature, even if they may have similar effects, such as removal from office and suspension of political rights. These penalties are intended to protect public interests and maintain the integrity of public administration, in accordance with the principles of sanctioning administrative law. The Elimination of Culpable Misconduct in the Administrative Misconduct Law and Its Implications One of the most significant changes introduced by Law 14.230/2021 was the exclusion of culpable forms of administrative misconduct. Prior to the reform, Law 8.429/92 allowed for the punishment of negligent acts, where public officials acted without intentor bad faith, but with negligence, imprudence, or incompetence. However, the new law limits administrative misconduct penalties to intentional (dolous) actions, excluding culpable (negligent) acts, which has sparked debate in both legal doctrine and jurisprudence. The justification for this change lies in the principle that administrative misconduct penalties should be reserved for the most serious offenses, those that involve a conscious violation of the duties of probity, morality, and efficiency. The legislature recognized that punishing public officials for mere negligence, without intent, could create legal uncertainty and potentially discourage public officials from making decisions in complex or high-risk public policy areas. While the exclusion of culpable misconduct has been criticized, particularly on the grounds that serious inefficiency should also be subject to penalties, the STF upheld this legislative choice as constitutional. The Court emphasized that the Brazilian Federal Constitution grants the legislature the discretion to define the scope of misconduct offenses, including the ability to limit penalties to intentional actions. In the STF’s view, the choice to punish only intentional misconduct does not violate the principle of administrative morality. Moreover, the legislature may, in the future, reintroduce penalties for culpable misconduct if deemed necessary, much like the continued existence of the crime of “culpable embezzlement” (peculato culposo) under the Penal Code. What is crucial, as we see it, is that the punishment of administrative misconduct aligns with the principles of proportionality and legal certainty, avoiding disproportionate or arbitrary types of penalties that could compromise the principles of legality, legal security, or the dignity of the individual. Proportionality of Penalties and Due Process of Law Another central point highlighted by the STF is the reaffirmation of the principle of proportionality as one of the cornerstones of sanctioning administrative law. The Court consistently emphasizes that penalties for misconduct must be applied in proportion to the severity of the offense, taking into account the specific circumstances of the case and the extent of the harm caused to public administration. In this regard, the Court noted that the penalties provided in Law 8.429/92, such as removal from office, suspension of political rights, and prohibition from contracting with the government, are severe and, therefore, should be applied with caution, always respecting due process of law. The STF reaffirmed that due process not only ensures the right to defense and an adversarial proceeding, but also guarantees that penalties are imposed fairly and in a balanced manner, without excesses or arbitrariness. The decision in ADI 4295 also reiterated the importance of the principle of strict legality in sanctioning law. The principle of legality requires that offenses be clearly defined by law, ensuring that public officials know precisely what conduct is considered misconduct and what penalties may be applied in case of violation. This principle is fundamental for legal certainty and for the predictability of state actions within the sanctioning framework. The Constitutionality of Penalties Without Proof of Damage Another relevant point addressed in the STF’s decision in ADI 4295 was the analysis of whether penalties for misconduct can be imposed without proof of financial damage to the treasury. The Court emphasized that the defense of administrative probity is not limited to protecting public finances in their financial dimension. Administrative misconduct is, first and foremost, aimed at safeguarding the fundamental principles governing public administration, such as legality, morality, and efficiency. In this sense, the STF reaffirmed that it is possible to impose penalties for misconduct even in cases where there is no evidence of material harm to the public treasury, as long as it is proven that the public official has gravely violated the principles of public administration. The Court ruled that the defense of administrative morality and the prevention of improper conduct are legitimate objectives of the State, justifying the imposition of penalties regardless of direct financial loss. This interpretation is consistent with the logic of sanctioning administrative law, which is not limited to punishing conduct that causes financial harm, but also seeks to sanction acts that compromise the ethical and functional integrity of public administration. The focus, therefore, is on ensuring compliance with the duties of probity, morality, and efficiency, which are essential pillars for the proper functioning of the State. Final Considerations: The Legacy of ADI 4295 for Brazilian Administrative Law The judgment of ADI 4295 by the STF represents a significant milestone in consolidating the legal framework for administrative misconduct in Brazil. The decision reaffirmed the constitutionality of key provisions of the Administrative Misconduct Law, validating the legislative choice to limit penalties to intentional misconduct and recognizing the autonomy of sanctioning administrative law in relation to criminal law. ADI 4295 also reinforced the importance of the Public Prosecutor’s Office and the Courts of Accounts in overseeing misconduct cases, ensuring that investigations are conducted impartially and based on legal and technical criteria. The participation of these oversight bodies is crucial to ensuring that penalties for misconduct are applied fairly and proportionally, always in defense of the public interest. Another important legacy of the decision was the recognition that misconduct penalties can be imposed independently, without the need for proof of financial harm to the public treasury, as long as the public official has gravely violated the principles of public administration. This understanding strengthens the preventive and ethical dimensions of the Administrative Misconduct Law, which aims to protect not only the financial assets of the State but also the moral and functional integrity of public administration. Finally, ADI 4295 consolidated the understanding that sanctioning administrative law is an effective and necessary instrument for preserving morality, legality, and efficiency in public administration. By reaffirming the independence of spheres and the proportionality of penalties, the STF contributed to the strengthening of mechanisms for controlling and combating corruption in Brazil, ensuring that public administration operates in accordance with the highest standards of ethics and responsibility. The decision also highlighted the importance of continually improving the legal framework surrounding administrative misconduct, respecting constitutional limits and fundamental guarantees, while maintaining an unwavering commitment to defending morality and efficiency in public administration. In this way, the judgment of ADI 4295 represents a significant advancement for Brazilian administrative law and a strengthening of the country’s democratic institutions. Author: Fábio Medina Osório

Introduction The principle of due process of law is at the core of constitutional rights both in the United States and Brazil. Although the expression was adopted in Brazil’s 1988 Federal Constitution, its origin dates back to the English Magna Carta of 1215, and its contemporary application in the United States has directly influenced the protection of fundamental rights in various Western democracies. This article aims to analyze the impact of the concept of substantive due process, developed by the U.S. Supreme Court, on Brazilian law, emphasizing its relevance for the protection of fundamental rights and the limitation of state arbitrariness. The analysis will be based on the concept of substantive due process as presented by Erwin Chemerinsky, one of the leading authorities in American constitutional law. Chemerinsky’s work is crucial for understanding the evolution of this principle in the United States and its potential impact on other jurisdictions, such as Brazil. Due Process of Law in the United States: Substantive Aspects In American law, the concept of due process of law is divided into two main aspects: procedural due process, which pertains to formal procedural guarantees, and substantive due process, which refers to material guarantees for the protection of fundamental rights. Both aspects are enshrined in the Fifth and Fourteenth Amendments to the U.S. Constitution, which ensure that no one will be deprived of “life, liberty, or property without due process of law.” As Erwin Chemerinsky explains, substantive due process plays a crucial role in protecting against state arbitrariness. He argues that the government cannot irrationally interfere with rights deemed fundamental, even when formal legal procedures are followed. Throughout history, the U.S. Supreme Court has used substantive due process to protect rights that are not explicitly stated in the constitutional text but are considered essential to human dignity. Examples of these rights include the right to privacy, established in Roe v. Wade (1973), and the right to same-sex marriage, recognized in Obergefell v. Hodges (2015) (CHEMERINSKY, 2023). Substantive Due Process and Its Application by the U.S. Supreme Court The U.S. Supreme Court has historically played a central role in defining and expanding fundamental rights, particularly through substantive due process. This doctrine has been applied in cases involving individual and economic liberties, as well as in protection against laws that unduly restrict fundamental rights. Substantive due process thus emerges as a tool to ensure that the government does not use its authority in a manner that violates implicit but fundamental rights. Chemerinsky explains that, in applying substantive due process, the Supreme Court uses different levels of scrutiny depending on the importance of the right in question. In cases involving fundamental rights, such as freedom of speech and the right to privacy, the court applies what is known as “strict scrutiny,” requiring the government to demonstrate that its action serves a compelling public interest and that no less restrictive means are available to achieve it (CHEMERINSKY, 2023). This concept also allows the U.S. judiciary to assess the substance of certain laws, meaning that even if the government follows all the required formal procedures, a law may still be declared unconstitutional if it unjustifiably violates fundamental rights. This approach has significantly expanded the protection of rights in the United States, leading to the recognition of liberties that, while not explicitly stated in the constitutional text, are essential to democracy. The Influence of American Due Process on Brazilian Law Although the Brazilian legal system follows a civil law tradition, it has been heavily influenced by the American doctrine of due process of law, especially after the promulgation of the 1988 Federal Constitution. Article 5, section LIV, of the Brazilian Constitution provides that “no one shall be deprived of liberty or property without due process of law.” As in the American model, due process in Brazil has both formal and substantive dimensions. In the Brazilian context, substantive due process is related to judicial review of government acts that, while meeting formal legal requirements, may violate fundamental rights. The application of this principle in Brazil is mainly manifested through the concepts of reasonableness and proportionality, which are frequently used by the Brazilian Supreme Court (STF) to assess the constitutionality of laws and administrative acts. Examples of the application of substantive due process in Brazil can be seen in decisions involving the protection of social and economic rights. In various cases, the STF has declared laws unconstitutional that, while formally correct, disproportionately restricted access to fundamental rights, such as the rights to health and education. This approach is clearly influenced by American substantive due process, which allows the judiciary to go beyond a strictly procedural analysis and evaluate the substance of the laws in question. Final Considerations The doctrine of substantive due process, as developed by the U.S. Supreme Court and explained by Erwin Chemerinsky, has had a profound impact on the interpretation of fundamental rights in both the United States and Brazil. While in the U.S. this doctrine has evolved to protect implicit rights such as privacy and personal autonomy, in Brazil, substantive due process is used by the STF to ensure that laws and government acts respect fundamental rights in their essence. The influence of the American model in Brazil is evident, particularly regarding the scrutiny of the reasonableness and proportionality of state actions. However, it is important to note that due process in Brazil has its own specificity, derived from its constitutional context and legal tradition, while constantly engaging in dialogue with foreign doctrinal and jurisprudential developments. References CHEMERINSKY, Erwin. Substantive Due Process. [PDF]. 2023. Constituição da República Federativa do Brasil de 1988. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Author: Fábio Medina Osório

As an attorney familiar with both common law and civil law systems, observing the evolution of Brazilian law through the lens of globalization provides unique insights into the dynamic interplay between domestic legal traditions and international influences. While Brazil’s legal framework remains firmly rooted in the civil law tradition, characterized by codified statutes and the primacy of legislative enactments, recent developments indicate a gradual convergence with global legal standards, especially those prominent in common law jurisdictions like the United States. The Civil Law Tradition in Brazil Brazil’s legal system is historically grounded in the civil law tradition, which originated from Roman law and was further developed through Napoleonic codifications. In this tradition, codified statutes and comprehensive legal codes serve as the principal sources of law, leaving the judiciary with a more constrained role in legal interpretation compared to their counterparts in common law systems. Judges are primarily tasked with applying the written law, and legal certainty is maintained through the strict adherence to legislative texts. The Brazilian Civil Code, Penal Code, and Code of Civil Procedure exemplify this legislative dominance, providing detailed frameworks that guide legal relations and the administration of justice. This model parallels many European civil law systems, particularly in France, Italy, and Germany, where judicial discretion is similarly limited, and legal interpretation tends to follow a literal or doctrinal approach. However, Brazil has progressively evolved its civil law system to address the complexities of modern legal challenges, particularly in the context of a globalized economy. The Emergence of Precedent in Brazil A significant shift in Brazilian law, brought about by the influence of global legal trends, particularly from common law jurisdictions, is the increasing reliance on judicial precedent. Traditionally, Brazilian courts did not place much weight on prior judicial decisions, adhering instead to the legislative text. However, with the enactment of the 2015 Civil Procedure Code reforms, a new emphasis was placed on the doctrine of stare decisis, or the binding effect of judicial precedents, particularly from higher courts. Under this framework, decisions from Brazil’s Supreme Federal Court (STF) and Superior Court of Justice (STJ) have acquired greater authority in shaping the interpretation and application of laws across the judiciary. The adoption of mechanisms like súmulas vinculantes (binding precedents) and the resolution of repetitive appeals (recurso repetitivo) underscores Brazil’s shift toward a more unified and predictable legal system, echoing the role of precedents in common law systems such as the United States. This development enhances legal certainty by ensuring that lower courts adhere to established interpretations from superior tribunals, reducing disparities in judicial decision-making. Comparison with the United States’ Common Law Despite this move towards the integration of precedents, Brazil’s legal system still diverges from the common law tradition as practiced in the United States. In American jurisprudence, the doctrine of stare decisis is foundational, with judicial decisions, particularly from appellate courts, shaping the trajectory of legal principles over time. U.S. courts, especially the Supreme Court, often engage in the development of legal norms, filling gaps in statutory law and adapting principles to novel circumstances through case law. In contrast, Brazilian courts are more restrained in their interpretative function, as statutes remain the primary source of law. While precedents are gaining significance, particularly through the binding authority of higher courts, judges in Brazil generally do not have the same latitude to create law as their American counterparts. The legislative branch remains the dominant force in shaping legal frameworks, and judicial activism is more constrained in comparison to the U.S. legal system. Globalization and Legal Harmonization The impact of globalization on Brazilian law is perhaps most evident in the increasing harmonization of legal standards across borders. Brazil’s integration into international trade agreements, participation in global regulatory bodies, and adherence to international treaties have compelled the country to adapt its legal system to meet global standards. This is particularly evident in areas such as corporate governance, financial regulation, and human rights, where international norms play an influential role in shaping domestic legislation. For instance, in corporate and commercial law, Brazil has embraced international arbitration and adopted standards consistent with global business practices, allowing for greater cross-border legal certainty. Additionally, Brazil’s courts have increasingly recognized and enforced foreign judgments and arbitral awards, further integrating the country into the global legal framework. The convergence of legal systems is also seen in the influence of international human rights law on Brazilian jurisprudence. Brazilian courts, especially the STF, have cited international human rights conventions and decisions from supranational bodies in their rulings, reflecting a willingness to engage with international norms to protect fundamental rights. This mirrors a broader trend in civil law countries toward incorporating international legal principles into domestic legal reasoning. Challenges of Legal Pluralism Despite the advances brought about by globalization, Brazil faces challenges in reconciling its traditional legal system with emerging global trends. Legal pluralism—where multiple sources of law, including domestic codes, international treaties, and judicial precedents, coexist—can create tensions within the judiciary. While the move towards a greater reliance on precedents fosters predictability, it also requires Brazilian courts to balance these precedents with legislative statutes and international norms, all while preserving the civil law system’s core principles. Moreover, the global influence on Brazilian law has led to debates about the appropriate role of the judiciary. Critics argue that the increasing emphasis on precedents risks undermining the legislature’s authority, while proponents contend that judicial precedents provide necessary clarity in an evolving and complex legal landscape. Conclusion Brazil’s legal system is at a pivotal moment of transformation, driven by the forces of globalization and the cross-pollination of legal traditions. While rooted in the civil law tradition, Brazil’s courts are increasingly adopting elements of common law, particularly through the expanded use of precedents. This shift reflects a broader trend toward legal harmonization in a globalized world, where national legal systems must adapt to meet international standards and respond to global economic and social challenges. As Brazilian law continues to evolve, the country’s legal system will need to navigate the tensions between maintaining its civil law heritage and embracing the flexibility and adaptability that common law principles, such as stare decisis, offer. In this globalized legal landscape, Brazil stands as an example of how legal systems can adapt to new realities while preserving their foundational principles. Author: Fábio Medina Osório

Spanish trade and investments in Brazil have grown significantly, solidifying Spain's position as a major foreign investor in the country. In 2022, Spain ranked fourth among foreign direct investment (FDI) contributors to Brazil, with an FDI stock of approximately US$52.3 billion. Spanish investments in Brazil span multiple sectors, including infrastructure, energy, and financial services, with notable examples such as Banco Santander’s extensive branch network expansion and investments in renewable energy projects like the Marlim Azul gas power plant and the Ribeirão Gonçalves solar energy complex. The close economic ties between Spain and Brazil are also evident in trade relations. Spain has become one of Brazil's most important European trading partners. In 2023, bilateral trade reached US$11.8 billion, with Brazilian exports to Spain concentrated in commodities like crude petroleum, soy, and corn. Spanish imports from Brazil are highly reliant on oil, which accounted for 40.6% of the total imports in 2023, largely due to the increased demand caused by the disruption of Russian oil supplies following the conflict in Ukraine. Other products such as sugar and soy derivatives also saw significant growth during this period. Brazil’s export basket to Spain, while focused on commodities, has shown resilience and potential for diversification. The conclusion of the Mercosur-EU trade agreement could further enhance Brazil's access to the European market, particularly in agriculture, providing opportunities for growth in other sectors. However, challenges remain. Brazil must navigate evolving regulatory frameworks such as the European Union’s new deforestation law (EUDR), which will restrict imports from deforested areas, potentially affecting Brazilian exports of soy, beef, and other agricultural products. In terms of investment projects, Spanish companies have played a pivotal role in Brazil’s energy and infrastructure development. Repsol, a key player in the energy sector, has engaged in multi-billion-dollar investments in Brazil's offshore gas fields, while Neoenergia, another Spanish company, has established itself as a leader in renewable energy. These projects are crucial for Brazil's energy transition and infrastructure expansion, further reinforcing Spain’s role as a strategic investor in Brazil. Beyond traditional industries, the Brazilian government has emphasized its commitment to innovation and regulatory modernization, launching initiatives to foster a more favorable environment for foreign investors. Recent discussions between Brazilian and Spanish officials have highlighted the potential for increased collaboration, particularly in areas like renewable energy, digital transformation, and infrastructure development . As both countries explore these synergies, the framework for Spanish investments in Brazil is set to strengthen further, benefiting from shared interests and strategic partnerships. Fábio Medina Osório, the founding partner of Medina Osório Advogados and former Attorney General of Brazil, is a specialist in regulatory law and corporate compliance. He holds a Ph.D. in administrative law from Complutense University of Madrid and has been actively involved in organizing events alongside key financial institutions and telecom giants to discuss regulatory trends, infrastructure, and risk management strategies for companies looking to execute large-scale infrastructure projects or investments in Brazil. His expertise and leadership are essential for navigating Brazil’s complex regulatory landscape.  

The Brazilian infrastructure bond market has increasingly gained prominence as a critical source of financing for large-scale projects,particularly in the areas of urban mobility, sanitation, and sustainable energy. In 2023, the National Bank for Economic and Social Development (BNDES) emerged as one of the key players in this space, with a 44% increase in approved credit compared to the previous year, reaching R$ 218.5 billion. This growth is in line with the recent introduction of Law No. 14.801/24 and Decree No. 11.964, which regulate incentivized bonds and promise greater flexibility and liquidity in the market BNDES plays a pivotal role in structuring these projects, providing long-term credit tailored to the unique demands of infrastructure initiatives, which often involve protracted bidding and construction phases. The institution's capacity to inject capital during times of economic stress, without the pressure to quickly reallocate funds to more profitable ventures, underscores its position as a vital partner in fostering sustainable development. In 2023, 70% of the bonds structured by BNDES were certified as sustainable, earning the bank international accolades, including the "Bond Arranger of the Year" award for Latin America. One of the primary challenges identified in the Brazilian infrastructure sector is the significant investment gap. Brazil’s infrastructure stock accounts for only 34% of its GDP, compared to 76% in China and 58% in India. To bridge this gap, Brazil needs to invest approximately R$ 450 billion annually in infrastructure, yet actual investment in 2023 reached only R$ 213 billion. In this context, infrastructure bonds emerge as a key solution, channeling private capital to complement public financing and mitigate the infrastructure deficit. The structuring of these bonds involves ongoing dialogue between issuers and investors. During the pre-completion phase, construction risks dominate, requiring robust guarantees and a thorough analysis of project complexities. Post-completion, the risks shift to operational and political variables, making financial guarantees a vital condition for investors' decision-making. In this regard, BNDES plays a fundamental role by taking on completion risks, providing an additional layer of security for investors. From the issuer’s perspective, contractual flexibility is crucial for the success of infrastructure bonds. This flexibility allows for adjustments throughout the project cycle as risks are mitigated and market conditions evolve. Recent Brazilian legislation permitting the issuance of bonds abroad with tax benefits, such as "infrastructure bonds," creates new opportunities for issuers to access international markets and attract additional capital. Environmental, social, and governance (ESG) criteria have become an essential factor in investment decisions, particularly in infrastructure projects. Brazil, with its vast natural resources, renewable energy potential, and sophisticated financial market, is well-positioned to become a global hub for sustainable capital. The combination of renewable energy, agribusiness, and extensive waterway networks offers Brazil a competitive advantage, attracting investors seeking to align financial returns with sustainability goals. In conclusion, BNDES, with its extensive history of supporting Brazil’s economic development, remains a strategic partner for issuers and investors in the infrastructure bond market. The recent regulatory changes, coupled with the bank’s expertise in long-term projects, have the potential to transform the Brazilian market, expanding investment opportunities and promoting sustainable development across the country. Author: Fábio Medina Osório

The 1988 Federal Constitution, often referred to as the “Citizen Constitution,” brought significant transformations to Brazil’s legal framework, establishing a robust structure for the defense of the democratic regime and fundamental rights. Among its most notable innovations was the strengthening of the Public Prosecutor’s Office (Ministério Público), which was endowed with broad and essential powers to protect diffuse, collective, and social interests. The Public Prosecutor’s Office was enshrined as a permanent institution, essential to the judicial function of the State, with the mission to defend the legal order, the democratic regime, and the indisputable social and individual rights. Since 1988, the Public Prosecutor’s Office has taken on the responsibility of acting as a guardian of collective and diffuse interests, covering crucial areas such as environmental protection, the defense of economic order, and the safeguarding of the rights of indigenous populations and minorities. This new configuration gave the Public Prosecutor’s Office a central role in promoting social justice, making it an active agent in defending citizenship and ensuring the enforcement of laws. Its judicial and extrajudicial actions aim to guarantee that fundamental rights are effectively protected, promoting social inclusion and equity, and strengthening democracy in Brazil. The Role of the Public Prosecutor’s Office in Conflict Resolution The Public Prosecutor’s Office in Brazil has developed a comprehensive and multifaceted approach to conflict resolution, utilizing various judicial and extrajudicial mechanisms that prioritize efficiency, restorative justice, and the protection of public interests. These mechanisms include leniency agreements, non-prosecution agreements, plea bargains, terms of adjustment of conduct, terms of commitment, and administrative settlements. Each of these tools plays a specific role in resolving disputes while upholding the principles of justice and democracy. Leniency Agreements (Acordos de Leniência) Leniency agreements are essential in the fight against corruption and anti-competitive practices. They allow companies involved in illegal activities, such as cartel formation or corruption, to cooperate with investigations in exchange for reduced penalties. These agreements are critical in revealing complex schemes that threaten economic order and public trust. Procedure: A company voluntarily discloses its involvement in illegal activities and collaborates with authorities, providing information that aids in broader investigations. In return, penalties are reduced, and the company may avoid sanctions such as debarment from public contracts. Impact: Leniency agreements have been pivotal in major investigations like Operation Car Wash, enabling the dismantling of extensive corruption networks and reinforcing the rule of law. Non-Prosecution Civil Agreements (Acordos de Não Persecução Civil) Non-prosecution civil agreements serve as a means to resolve civil disputes without the need for litigation, particularly in cases involving public administration and collective rights. These agreements are instrumental in swiftly addressing harm caused to public assets or interests. Procedure: The Public Prosecutor’s Office negotiates with the involved party to agree on compensatory measures or corrective actions. The agreement precludes the need for a civil lawsuit, provided that the agreed terms are fulfilled. Impact: Such agreements reduce the judiciary’s caseload, facilitate the restitution of public interests, and ensure that justice is delivered efficiently. Non-Prosecution Penal Agreements (Acordos de Não Persecução Penal) Non-prosecution penal agreements are alternatives to traditional criminal prosecution, particularly in cases involving minor offenses. These agreements emphasize restorative justice, focusing on reparation and community service rather than incarceration. Procedure: The accused agrees to fulfill certain conditions, such as compensating the victim or performing community service, in exchange for the Public Prosecutor’s Office refraining from pursuing criminal charges. Impact: These agreements help reduce prison overcrowding, promote rehabilitation, and focus on restoring harm done to victims and communities. Plea Bargains (Colaborações Premiadas) Plea bargains, or “colaborações premiadas,” are agreements where defendants provide substantial information about criminal activities in return for reduced sentences. This mechanism is particularly effective in cases involving organized crime, corruption, and complex financial crimes. Procedure: The defendant cooperates with the investigation by providing crucial evidence or testimony, leading to the prosecution of other criminals or the dismantling of criminal organizations. In exchange, the defendant receives a reduced sentence or other legal benefits. Impact: Plea bargains have been crucial in uncovering large-scale corruption, especially within political and corporate sectors, significantly contributing to the enforcement of justice. Terms of Adjustment of Conduct (Termos de Ajustamento de Conduta - TAC) Terms of Adjustment of Conduct (TACs) are extrajudicial agreements designed to resolve disputes involving violations of public or social rights. TACs are widely used in environmental, consumer protection, labor law, and public health cases. Procedure: The Public Prosecutor’s Office negotiates with the violator to agree on actions necessary to remedy the situation. The TAC is legally binding, and non-compliance can lead to judicial enforcement. Impact: TACs offer a flexible and effective means to resolve disputes without resorting to litigation, ensuring that public interests are protected and compliance with the law is achieved. Terms of Commitment (Termos de Compromisso) Terms of Commitment are agreements similar to TACs, often used in regulatory compliance, particularly concerning public administration and environmental issues. These terms are negotiated between the Public Prosecutor’s Office and the party responsible for the potential harm. Procedure: The involved party agrees to take specific actions to prevent or correct harm, often within a set timeframe. Compliance with these terms can prevent further legal action. Impact: Terms of Commitment encourage proactive compliance with laws and regulations, helping to prevent damage before it occurs and promoting a culture of accountability. Administrative Settlements (Transações Administrativas) Administrative settlements resolve disputes or infractions at the administrative level without resorting to the judiciary. These settlements are often used in regulatory or economic matters where the Public Prosecutor’s Office and the involved party agree on terms to resolve the issue. Procedure: The Public Prosecutor’s Office and the infringing party reach an agreement, often involving the payment of fines, cessation of illegal activities, or implementation of corrective measures. The settlement is formalized through an administrative act. Impact: Administrative settlements provide a quicker resolution of disputes, reducing the need for prolonged legal or administrative procedures and ensuring that regulatory frameworks are respected. Conclusion The Public Prosecutor’s Office in Brazil has developed a comprehensive and multifaceted approach to conflict resolution, utilizing a variety of judicial and extrajudicial mechanisms that prioritize efficiency, restorative justice, and the protection of public interests. Through the use of leniency agreements, non-prosecution agreements, plea bargains, TACs, and other tools, the Public Prosecutor’s Office plays a vital role in upholding justice, promoting social inclusion, and strengthening democracy. These mechanisms not only alleviate the burden on the judiciary but also foster a culture of compliance and accountability across different sectors of society. As Brazil continues to navigate complex legal and social challenges, the role of the Public Prosecutor’s Office in conflict resolution remains crucial, adapting to meet the evolving demands of justice and public interest in a dynamic legal landscape.