Princípio da proporcionalidade e a gradação das penas nos atos de improbidade administrativa

Abstract

This study is based on the doctrinal need in the application of the principle of proportionality as a way to dose the administrative improbity sanctions. It applies the principle of proportionality as an effective way of interpretation and relativization of the constant rules of the parental law. As the penalties of improbity, they have an excessively open nature, as they stablish a very large amount of penalties that can be imposed on the public official. Therefore, the need to apply the principle of proportionality in improbity penalties, in a way that the magistrate as a way to avoid the commission of injustice, since the act of magistrate judging may cause an abuse of power, generating unreasonable decisions, and the application of this principle is the way to have more fair decisions. The present study aims to demonstrate the applicability of the principle of proportionality in the penalties gradation in administrative improbity crimes, as a way to bring greater justice to improbity convictions, always striving for balance and fairness in the application of penalties as a way to obey the caput and sole paragraph of the article 12 of the Administrative Improbity Law. To achieve this end, it will be used scientific research methods, as the procedure methods, the historical-evolutional, comparison and observational. About the method of approach it will be used the deductive one, that is, it will start with a general analysis of the application of the principle of proportionality as well as the penalties gradation relating to crimes of administrative improbity, including the doctrine, jurisprudence and legal provisions. It will be used indirect documentary research, through bibliographic research, through books, magazines and electronic articles, as jurisprudential, thought information of Superior Courts and decisions of Justice Courts, in addition of the comparative law.