O princípio da proporcionalidade na aplicação de penas em direito administrativo disciplinar

Abstract

The presentstudy examined the binding to the principle of proportionality in the application of disciplinary sanctions under the Federal Public Administration, in particular the application of the penalty of dismissal. Currently, the advisory organ of the Federal Executive Branch maintains a bindinginterpretation of the Law 8.112/90, which prohibits the easing of disciplinary penalties. Although the Law n. 8.112/90 expressly provides that the trial should consider the nature and seriousness of the violation and the damage from it, command that comes directly from the principle of proportionality, the General Attorney's Office has issued binding opinions prohibiting the judging autority to soften the penalty, even when the case shows it is disproportionate. As discussed, this position carries a great burden for the Administration and has been the subject of judicial review. Therefore, we demonstrated that the Judiciary has signed the jurisprudence in order to outlaw the disproportionate disciplinary penalty. We conclude that, given the normative force of the principle of proportionality, the provison in the general law of administrative procedure that this principle must be observed and, finally, the rule contained in the federal civil servants' statute, the trial must occur in harmony with the principle of proportionality.