Administrative Inquiry (Sindicância): Rights of the Public Employee Under Investigation

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

A sindicância is an investigative procedure that comes before the PAD (administrative disciplinary proceeding), but the public employee under investigation already has rights that must be respected. Learn how to protect yourself during the inquiry.

What a sindicância is and when it is opened

The sindicância, provided for in Articles 143 and 145 of Law 8.112/1990, is an investigative administrative procedure that the public administration uses to look into irregularities in the public service. Unlike the administrative disciplinary proceeding, a sindicância follows a simpler path and has a shorter deadline: it must be completed within 30 days, which may be extended for an equal period.

A sindicância is opened when the administration learns of facts that may amount to violations of official duties but does not yet have enough evidence to determine who is responsible or whether the irregularity actually occurred. It works as a preliminary inquiry that allows the competent authority to decide whether to close the matter, impose a light penalty, or open a PAD.

A sindicância can end in one of three ways: the case is closed because the irregularity was not proven; a penalty of warning or suspension of up to 30 days is imposed; or an administrative disciplinary proceeding is opened because the seriousness of the facts calls for a harsher penalty. In that last case, the records of the sindicância become part of the PAD as informational material.

Any public employee can be subject to a sindicância, whether holding a tenured position or a commissioned one. The authority that opens the inquiry appoints a committee, usually made up of three public employees. Unlike in a PAD, the law does not necessarily require that they be tenured.

The employee’s rights during a sindicância

Although a sindicância is primarily investigative, the employee under investigation has fundamental rights that the investigating committee cannot ignore. The most important is the right against self-incrimination, guaranteed by Article 5, item LXIII, of the Federal Constitution, which gives the person under investigation the right to remain silent.

When a sindicância takes on an accusatory character, meaning there is already a clear indication of who is responsible and that the irregularity occurred, the adversarial process and the right to a full defense must be ensured. The STF (Brazil’s Supreme Federal Court) and the STJ (Brazil’s Superior Court of Justice) have well-established case law holding that a sindicância resulting in a penalty without respect for the adversarial process is void.

The employee has the right to be informed that the sindicância exists and of the facts being investigated. The employee may also hire a lawyer to follow the procedure, although having legal counsel is not mandatory. Submitting documents and requesting additional investigative steps are also among the rights of the person under investigation.

Unlike the administrative disciplinary proceeding, a sindicância follows a simpler path and has a shorter deadline: it must be completed within 30 days, which may be extended for an equal period.

The employee under investigation and his or her lawyer are guaranteed access to the case file, under Binding Precedent 14 of the STF, which ensures broad access to evidence already documented in an investigative procedure. Denying access to the file can amount to a violation of the right to defense and justify annulling the procedure.

The difference between an investigative sindicância and an accusatory sindicância

The distinction between an investigative sindicância and an accusatory one has significant practical importance. The sole purpose of an investigative sindicância is to gather information and evidence to support the competent authority’s decision on whether a PAD is needed. In this form, the adversarial process and the right to a full defense are not mandatory, because there is no formal accusation and no possibility of directly imposing a penalty.

An accusatory sindicância, on the other hand, is already aimed at an employee identified as the possible author of the irregularity, and it can result in a penalty of warning or suspension of up to 30 days. In this form, the adversarial process and the right to a full defense are indispensable from the start. Without them, every act performed and any penalty imposed may be declared void.

The courts have been strict in requiring that an accusatory sindicância observe minimum procedural guarantees. The investigating committee must formally notify the employee of the accusation, give the employee time to present a defense, and consider the defense arguments before issuing its final report.

In practice, many sindicâncias begin as investigative and, as the inquiry proceeds, it becomes clear who is responsible and that the irregularity occurred. At that point, the committee must convert the procedure into an accusatory sindicância, notifying the employee and ensuring all defense rights, or recommend that a PAD be opened.

How to defend yourself in a sindicância

When notified that a sindicância has been opened, the employee should take immediate steps to preserve his or her rights. The first step is to gather all documents related to the facts under investigation, including e-mails, memoranda, reports, and any other records that may show that the employee’s conduct was proper.

Hiring a lawyer, although not mandatory, is highly advisable, especially when the facts under investigation may result in a disciplinary penalty or the opening of a PAD. A lawyer can review the procedure, identify any irregularities, and advise the employee on the best defense strategy.

The employee should exercise the right to attend the hearing of witnesses and to challenge those who may have an interest in the outcome of the sindicância. Having the employee or his or her attorney present at the hearings makes it possible to monitor whether the testimony is taken properly and to put questions to the witnesses.

Pay special attention to the deadline for submitting the written defense. The defense should be direct, grounded in facts and documents, and address each point of the accusation. Legal arguments about the statute of limitations, the lack of evidence, and the disproportion between the conduct and the proposed penalty should be explored where relevant.

If you are a public employee and have been notified of a sindicância, seek legal advice from a lawyer who specializes in administrative law to make sure your rights are respected throughout the entire procedure. The firm defends public employees at every stage of disciplinary proceedings.

Frequently Asked Questions

Can a sindicância directly result in the employee’s dismissal?

A sindicância cannot result in dismissal. Under Law 8.112/1990, the maximum penalty that can be imposed in a sindicância is suspension of up to 30 days. When the facts uncovered indicate that a more serious penalty is needed, such as dismissal, revocation of retirement, or removal from a commissioned position, the investigating committee must recommend opening an administrative disciplinary proceeding.

Can the employee refuse to testify in a sindicância?

An employee summoned as a witness in a sindicância has a duty to appear and testify, on pain of liability for a breach of official duty. However, the employee under investigation, meaning the person against whom the suspicions are directed, has the constitutional right to remain silent and not to produce evidence against himself or herself. This distinction between a witness and a person under investigation is fundamental to the correct application of procedural guarantees.

How long does a sindicância last, and what happens if the deadline is exceeded?

A sindicância must be completed within 30 days, which may be extended by another 30 days. Under the majority view in the case law, exceeding the deadline does not, by itself, automatically void the procedure. However, unjustified delay can be raised as grounds for annulment if it harms the employee’s defense, especially when it makes it harder to gather evidence or locate witnesses.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.