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April 07, 2020

COVID-19 | Administrative Law - MP No. 928/2020

Administrative Law updated on Apr 07 at 11:44 am

Provisional Measure No. 928/2020 suspends deadlines in enforcement proceedings and statute of limitations deadlines and addresses requests for access to information during the COVID-19 pandemic

Provisional Measure (PM) No. 928, enacted on March 23, 2020, added Article 6-C to Federal Law No. 13,979, of February 6, 2020 (Coronavirus Law), to suspend the following deadlines:

  1. Procedural deadlines against the individuals and private entities accused in enforcement proceedings during the state of calamity resulting from COVID-19, within the Legislative Decree No. 6, of March 20, 2020; and
  2. Statute of limitations deadlines barring enforcement sanctions, provided in Law No. 8,112/1990 (Federal Civil Servants Statute), Law No. 9,873/1999 (Federal Administrative Statute of Limitations), in Law No. 12,846/2013 (Federal Anticorruption Law) and in other rules applicable to civil servants.

PM No. 928/2020 came into force in the date of its enactment (March 23, 2020) and produced effects immediately, suspending all related deadlines.

As Legislative Decree No. 6/2020 recognized the occurrence of a state of public calamity with effects until December 31, 2020, it can be understood that the period of suspension of procedural and statute of limitations deadlines remains opened, until further definition. Such definition may come in the form of either the enactment of a new provisional measure with further clarifications or the amendment of the text of the PM No. 928/2020 during its approval by the National Congress. The suspension period may end with the enactment of a new provisional measure or of a legislative decree reassessing the effects of the state of public calamity.

Provisional Measure No. 928/2020 also adds Article 6-B to the Coronavirus Law to regulate the requests for access to information during the state of calamity. Priority would be given to requests related to measures tackling the state of calamity. Responses to requests for access to information in public administrative bodies or entities affected by the calamity state (i.e., that depend on in-person access or with public servants involved in measures to tackle the calamity) would be suspended.

Nevertheless, Article 6-B had its effectiveness suspended by Justice Alexandre de Moraes, of the Brazilian Supreme Court (STF). The suspension was requested by the Federal Council of the Brazilian Bar Association (OAB) in the Direct Unconstitutionality Action (ADI) No. 6,351/DF. In his decision, Justice Alexandre de Moraes understood that Article 6-B subverts the constitutional order and deprives the society from its right of information, especially in times of a health crisis. His decision is subject to the referendum of the Plenary of the Supreme Court, but is in force since its publication on March 30, 2020.

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