Public Official Accused of Improbity: How to Defend Yourself and What Can Happen

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

An administrative improbity lawsuit has become one of the most feared proceedings for public servants and public managers, because it reaches the assets, career, and political rights of the person accused. Understanding the stages of the case, the key defense milestones, and the weight of proving the subjective element (intent) is decisive to facing the accusation with a strategy, not just a reaction.

What Changed With the Reform of the Improbity Law

The Administrative Improbity Law, Law 8.429 of 1992, was substantially amended by Law 14.230 of 2021. The reform redefined central concepts and raised the standard of proof required of the plaintiff, generally the Public Prosecutor’s Office (Ministério Público). Conduct that was merely negligent used to be enough for a conviction. As a rule, the plaintiff must now show a deliberate intent to harm the public interest.

This change is not merely technical. It reshapes the entire logic of accusation and defense, because it shifts to the plaintiff the burden of proving that the official wanted the unlawful result or knowingly accepted the risk of causing it. For an honest public servant who made a management mistake, this distinction can mean the difference between dismissal of the case and a conviction.

The higher courts have been consolidating the position that improbity is not the same as simple illegality. Not every irregular act amounts to improbity, and not every loss to the public treasury results from bad faith. Today, that premise is the starting point of any well-built defense.

Intent as the Core of the Defense

The concept of dolo (willful intent) is the heart of the new regime. The reformed law requires a free and conscious will to engage in the unlawful conduct, and it expressly rules out liability for mere fault, meaning recklessness, negligence, or lack of skill. A public official can no longer be convicted simply because he or she made a mistake or because the outcome was unwanted.

What is more, the statute made clear that intent must be directed at the specific unlawful purpose. It is not enough to show that the official wanted to perform the administrative act. The plaintiff must prove that the official wanted precisely the result the law prohibits, such as unjust enrichment, diversion of funds, or a knowing violation of the principles of public administration.

For the defense, this is the most fertile ground. Most accusations rest on presumptions, on interpretations of formal irregularities, or on conclusions drawn from audit reports. Dismantling the theory of intent by showing good faith, the absence of personal gain, and the reasonableness of the conduct is usually the most effective way to avoid a conviction.

Case law has also begun to demand individualization. When acts are carried out by collegiate bodies or through chains of command, the specific contribution of each official must be identified. Blanket liability, which used to reach everyone who signed a document, now meets strong resistance in the courts.

For an honest public servant who made a management mistake, this distinction can mean the difference between dismissal of the case and a conviction.

The Stages of the Case and the Defense Milestones

An improbity lawsuit follows its own procedure, with well-defined moments at which the defense strategy must be put to work. The first is the pre-litigation stage, in which a civil inquiry or investigative procedure gathers evidence. Even before a lawsuit is filed, you can act by submitting statements, clarifications, and documents that show the conduct was lawful.

Once the lawsuit is filed, the defendant has the chance to submit a preliminary defense, a filing of great strategic importance. In it, the public official can ask the court to reject the complaint outright, showing that there is no just cause, that this is the wrong type of action, or that there is no subjective element (intent). A well-grounded preliminary defense can end the case before the evidence stage even begins.

Once the complaint is accepted, the evidence stage begins, aimed at producing proof. Witness testimony is taken, documents are filed, and, when necessary, expert examinations are carried out. The defense should be proactive, requesting the evidence that shows good faith, the decision-making context, and the absence of personal gain, rather than passively waiting for the plaintiff to act.

After the evidence stage come the closing arguments and the judgment. If the decision is unfavorable, the appeals stage begins, with an appeal to the court of appeals and, in specific situations, appeals to the higher courts. Each step calls for its own assessment of what can still be argued and which arguments have a real chance of success.

The Financial and Career Risks Involved

Penalties for improbity are severe and affect different areas of a public official’s life. On the financial side, the main ones are full reimbursement of the damage caused to the public treasury, a civil fine, and forfeiture of assets or amounts unlawfully added to the official’s estate. These effects can wipe out decades of building a financial life.

The consequences for career and political life are also serious. A conviction can lead to loss of public office and suspension of political rights for periods that vary with the gravity of the act. For someone who built a career in public service, the impact is often irreversible.

There is also the freezing of assets, a precautionary measure that can be ordered at the very start of the case. Although its purpose is to secure any future reimbursement, it usually falls on the official’s property before any final conviction, which requires the defense to act quickly to limit its reach to the amount actually in dispute.

Building the Defense Strategy

A solid defense combines legal technique with a strategic reading of the specific case. The first step is to identify precisely which type of improbity is being alleged, whether unlawful enrichment, damage to the public treasury, or violation of principles, because each requires a different standard of proof and opens different lines of rebuttal.

Next, it is essential to reconstruct the context of the administrative decision. Technical opinions, guidance from oversight bodies, tight deadlines, and budget limits all help show that the conduct was reasonable and taken in good faith. That picture undermines any claim of deliberate intent to harm the public interest.

It is also decisive to explore the statute of limitations, the loss of the right to sue (decadência), and procedural issues. The reform introduced new deadlines and counting rules, and when the right to bring an action is lost because time has run out, the case is dismissed regardless of the merits. Checking these milestones at the outset can significantly shorten the litigation.

Frequently Asked Questions

Can a public servant who simply made an administrative mistake be convicted of improbity?

As a rule, no. After the reform of the Improbity Law, a conviction requires proof of dolo (willful intent), that is, a conscious will to commit the unlawful act and bring about the prohibited result. A simple management error, a technical failure, or a mistaken interpretation of a rule, without intent to harm the public interest, does not amount to improbity. It is up to the defense to show good faith and the absence of personal gain, ruling out any presumption of bad intent built on formal irregularities.

Can assets be frozen before a conviction?

Yes. Freezing of assets is a precautionary measure that can be ordered at the start of the case, in order to secure any reimbursement to the public treasury and payment of a fine. For that reason, it usually falls on the official’s property before any final decision. The defense can ask to limit the freeze to the amount actually in dispute, show the lawful origin of the assets, and request the release of sums needed for the accused’s subsistence and essential activities.

What are the main penalties if you are convicted?

Penalties vary with the type and gravity of the act. Among the main ones are full reimbursement of the damage to the public treasury, forfeiture of amounts unlawfully added to one’s estate, a civil fine, loss of public office, suspension of political rights, and a ban on contracting with the government or receiving tax benefits. These penalties must be set in proportion to the offense, and the defense can work to reduce their reach even when the act is found to have occurred.

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