Aspectos da ampla defesa e contraditório no processo administrativo ambiental no âmbito do IBAMA

Abstract

The Brazilian Institute of Environment and Renewable Natural Resources - IBAMA, is a Brazilian federal agency charged to exercise the power of environmental police. Aiming to increase the average completing the environmental administrative process, IBAMA issued on December 7, 2012 a Normative Instruction No. 10. Despite the undeniable gain on term of speed for the Administration, the cited Instruction brings some situations that could affront the exercise of constitutional guarantees of principles audi alteram partem and full defense. Using of exploratory and quantitative research, with literature review, documentary research and adopting as concepts of theses guarantees the understanding of the Supreme Court, the aim of this work were to detect possible violations of these guarantees. Four cases of violations were identified: the use of upper bounds and aggravation indicated only in the judgment act without a previous contradictory, the impossibility to appeal to the National Environmental Council, the limitation on the electronic field to state reasons and the peremptory deadline for the trial. As the application of upper bounds and increases, this work conclude that the device affront the principle audi alteram partem as in offer a shorter new deadline to the judge for the analysis of controversial point and contradict express regulatory provision. Regarding the impossibility to appeal to the National Environmental Council, this work ranks that the situation do not affront the principle audi alteram partem, since the device which provided the possibility of appeal were tacitly revoked. In what concerns limitation on the electronic field to state reasons opines that this limitation affronts the constitutional guarantee and it is suggested that small change would heal the problem. With regard to peremptory deadline for the trial, it positions itself in the sense that there would be outrage if the incidence of the indexation rate occurred only after the transit administrative trial. Finally, concludes that the public administration sometimes obstruct the imperative arising with the new constitutional charter when edit internal specific regulations that confront the constitutional guarantees. Is a duty for their administrative servers obey the constitutional provisions, falling to the administrator, represented here by the Judging Administrative Authority, withdraw from the mere subsumption of fact the standard procedure and move to seek the appropriate response to the Constitution.