Change in improbity law frees Pazuello from accusation about oxygen in Manaus

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The Federal Justice in Amazonas decided to free General Eduardo Pazuello (PL) from the accusation of administrative improbity in the oxygen crisis in Manaus, due to the new improbity law passed by Congress and sanctioned by President Jair Bolsonaro (PL).

The decision extends to the other accused, including three secretaries in the Pazuello administration at the head of the Ministry of Health.

The MPF (Federal Public Prosecutor’s Office) filed a lawsuit for administrative impropriety against Pazuello and his team, when they were in charge of the ministry, for failure to respond to the health crisis in Amazonas. Covid-19 patients died of asphyxiation from lack of oxygen at the height of the coronavirus pandemic.

The prosecutors of the Republic pointed out in the action that there were acts of improbity in five different situations: delay by the Ministry of Health to send a team to Amazonas, failure to monitor oxygen stocks and adopt measures to avoid shortages, pressure for chloroquine, delay in transferring patients and lack of encouragement for social distancing.

In addition to Pazuello, the action extends to Hélio Angotti Neto, who was secretary of Science, Technology, Innovation and Strategic Inputs in Health; Luiz Otávio Franco Duarte, then Secretary of Specialized Health Care; and Mayra Pinheiro, former Secretary of Labor Management and Health Education.

The improbity action also covers the local authorities that acted in the oxygen crisis: Marcellus Campêlo, secretary of Health of Amazonas, and Francisco Máximo Filho, coordinator of the crisis committee in the state.

Federal judge Diego Oliveira dismissed the requests for conviction made by the MPF, in a decision last Monday (9).

The magistrate’s seven-page decision does not discuss the prosecution’s points, as it understands that the action lost its meaning in the face of the new administrative improbity law, amended in Congress and sanctioned by Bolsonaro in October 2021.

The new law provides that improbity only exists in case of willful misconduct, that is, when there is an intention of harm on the part of the managers.

According to the judge, the new legal provisions should extend to actions of improbity filed before the law came into force.

“Despite the ‘extreme gravity’ of the facts denounced by the MPF, which gave rise to national commotion, currently the conduct described in the initial petition does not conform to any of the hypotheses provided for in the sections of article 11 of the administrative improbity law”, said Oliveira.

“Abolitio criminis’ occurred in the case under examination because the conduct of the defendants was no longer considered an act of administrative improbity,” he said.

Therefore, there was no alternative but to reject the action, according to the judge. “Good or bad, the new law of administrative improbity was democratically conceived by the Legislative Power and ratified by the Executive Power, through presidential sanction”, cites the decision.

The MPF will analyze the case and may seek a characterization of collective damage.

“By extinguishing the process, the Justice was based on the legislative change that made it impossible to hold the defendants accountable for acts of administrative improbity”, said the MPF in Amazonas, in a note.

An opinion from the body, in March, pointed out the impossibility of framing the accusations in view of the change in legislation.

“The impossibility of holding the defendants accountable in the context of administrative improbity does not prevent them from being prosecuted and held responsible in other areas. The MPF will analyze the case from the point of view of fundamental rights, considering, among other possibilities, the characterization of collective damage, which can generate accountability”, said the MPF.

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