Seized Goods
Seized Goods
Stanley Martins Frasão*
Fernanda Campolina Veloso**
Fernanda Campolina Veloso**
Pedro Monteiro***
The Bill number 1377/07, if passed, will become effective on the date of its publication, and will add provisions to the article 10 of the Law number 8,429 of June 2nd, 1992 – the Administrative Misconduct Law, regarding the safeguard and upkeep of seized good by the Public Administration, cited below:
XVI – allow, facilitate or concur to the depredation or degradation of any goods seized by the administration.
§ 1st In the act of seizure of the section XVI, the seizing authority shall elaborate an report that describes the characteristics and conditions of conservation of goods and its integral parts and accessories, when applicable, and a copy of which must be handed to the owner or the owner’s legal representative, as a receipt.
§ 2nd In case the seizing authority does not elaborate an report in the terms of § 1st , it will tacitly take up the responsibility for the seized goods, considering these and their parts in perfect condition.
§ 3rd The owner or the owner’s legal representative will have 72 hours to dispute the report described in § 1st , and failure to do so will constitute integral acceptance of the report.
§ 4th When destination is provided for the seized goods, in the terms of the specific legislation, in each case the goods will be checked again so that a comparison of its present state and the state described in the report at the moment of seizure, and the competent authority will be held responsible for the depredation or degradation accrued, in the terms of this article.”
According to paragraph 4th of the article 37 of the Federal Constitution, "the acts of administrative misconduct will bring the suspension of political rights, loss of public occupation, the unavailability of goods and the reimbursement to public treasury in the manner and degree provided by law, without prejudice to admissible criminal prosecution."
From this premise, the Law number 8,429 was enacted and is known as the Law of Administrative Conduct, in the attempt to fight corruption in the country and punish those who damage the public property.
Thus, with extreme necessity to protect public property, the legislator enacted a far-reaching norm, without a clear definition of the concept of administrative misconduct, which is found only in the jurisprudence and doctrine, lending the matter diverse concepts, many times contradictory. However, the application of the norm has been done in an indiscriminate manner, due to its accessible character.
In view of the ample nature of the law, Congressman Silvinho Peccioli, cited in his justification a few Brazilian laws that rule the seizure of goods by the administration (Penal Code, Forestry Code, Driving Code, the Law number 6,368 of 1976, which deal with the prevention and repression to traffic and inappropriate use of drugs, the Law number 6,575 of 1978, which deals with the storage and sale of vehicles towed, seized and retained throughout the country, the Law number 9,613 of 1998, which deals with crimes of money laundry or concealment of assets, rights and valuables; and the law 11,101 of 2005, which regulates the judicial and extrajudicial recovery and the bankruptcy of private enterprises), on the understanding that the above mentioned Bill should be presented, including the Law of Administrative Misconduct, among the acts of administrative misconduct that cause losses to the treasury due to action or omission, intentional or not, of administrator responsible for the safeguard and upkeep of seized goods who allows, facilitates or concurs for the depredation or degradation of seized goods.
We note that the objective of the Bill is to safeguard the interests of the owner of the goods as well as of the public treasury. Frequently the public administration accrues significant losses due to the depredation of seized goods, which lose their value and many times are not apt to cover the expenses of the process of seizure. The Bill, which is being analyzed by the Commission of Constitution and Justice and of Citizenship, is in the interest of the principles of public morality, and it is known that the public treasury many times has to compensate the damages caused by public servants to goods that were under their supervision.
He also defends that the Bill will protect the goods which the State expects to incorporate to its assets, due to the proceedings that originated the seizing of the goods. It will also put an end to the depredation, degradation and the trashing of seized goods, fulfilling the required protection of the goods secured by the public treasury.
The intended reform of the article cited above establishes that in the act of seizing the goods, the seizing authority has to produce a report that describes the characteristics and condition of the goods and their integral parts and accessories, a copy of which has to be handed to the owner or legal representative with a receipt. The authority that does not produce a report will be held responsible for the seized goods. The owner will have a 72 hour period to question the report. Finally, when the decision about what will happen to the goods is reached, the goods will be checked again and their state of preservation will be compared to the state reported at the time of seizure, and the competent authority will be held responsible for existing depredation.
The goods handed to the public administration for free use may generate losses of an irreversible nature, and the inherent wear and tear of the goods. When motor vehicles are seized, for example, they are sometimes object to use in an irregular manner by public workers who commit traffic violations of all sorts, such as parking violations, speeding, failure to use a seat belt, among others. And, of course, the fines and other penalties are charged to the owner. The Bill aims to avoid the filing of lawsuits against the State, which is responsible for the safeguard of the seized goods.
Finally the Bill, if converted into law, will be considered an advance mainly for the State, since it will minimize irregularities and losses to public coffers.
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*Stanley Martins Frasão is attorney at "Homero Costa Advogados"
**Fernanda Campolina Veloso is a paralegal at "Homero Costa Advogados"
***Pedro Monteiro is a translator
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