Ausência de presunção de legitimidade e de veracidade dos autos de infração exclusivamente lastreados na declaração do agente público autuador e preclusividade probatória da efetiva comprovação do ilícito no respectivo processo administrativo sancionatório: uma análise sistêmica do artigo 280, § 2º, do Código de Trânsito Brasileiro

Abstract

The purpose of this monograph is to demonstrate, on the one hand, that traffic violation notices (AITs) exclusively backed by the declaration of the public agent responsible for the infraction do not enjoy the classic administrative attributes of presumption of legitimacy and veracity, and, on the other hand, that the absence of effective proof of the alleged violation, by the member of the National Traffic System (SNT), when the administrative sanctioning process is initiated, implies, as a rule, the loss of the possibility for the Public Administration to produce evidence about the alleged infraction at a later time. From a material point of view, the elaboration of this work is justified both in terms of the difficulty and/or impracticability of the accused person to oppose, with a robust evidentiary complex, the state accusation based solely on the public faith of the supervisory agent, and in due to the significant collection of revenue from the imposition of fines, with a possible distorted use of that type of assessment in order to achieve, by oblique means, an eminently collection scope to the detriment of the punitive-pedagogical. From the procedural aspect, this investigation is necessary due to the existence of both regulatory gaps in the scope of the administrative transit process, and the multiple general procedural discipline of States and Municipalities in matters of Administrative Law, potentially giving rise to state abuses and illegality, as well as unequal treatment to the detriment of those administered depending on the corresponding sanctioning entity and the location where the alleged violation was committed. For the investigative approach, the critical-dialectical and literary and jurisprudential review methods were adopted and, as theoretical references, the doctrines of neoconstitutionalism and legal post-positivism. It was observed that article 280, paragraph 2, of the Brazilian Traffic Code (CTB), in the part in which it authorizes the proof of the traffic violation based on the mere declaration of the public agent, is systemically inadmissible in the current legal system, because it contradicts the Constitution of the Federative Republic of Brazil of 1988 (CRFB/88), and confronts relevant homeland doctrine and jurisprudence relating to the integrated domains of Criminal Law, Criminal Procedure and Sanctioning Administrative Law. It was also found that, after the advent of the “new” Civil Procedure Code (CPC), established by Law No. 13.105/15, supplementary and subsidiary applicable to the situation under examination, it does not seem possible, as a rule, to effectively prove the traffic infraction at a time after the initiation of the respective sanctioning administrative process, mainly in the form of Resolution No. 918/22 of the National Traffic Council (CONTRAN), given the violation not only of duties of good faith and procedural preclusive rules on the production of documentary evidence. It was concluded that the first part of § 2 of article 280 of the CTB was unconstitutional and legally inadmissible, as well as, as a rule, probative preclusivity concerning the administrative-contentious action of the Executive Branch in the traffic area, despite the (still) timid existence of procedural norms in this sense.