Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 107º CPP – Suspicion of the police authority.

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Art. 107. Suspicion cannot be raised against police authorities during  investigations, but they must declare themselves suspicious when there is a legal reason.

Possibility of arguing the suspicion of the police authority

Spontaneous declaration of suspicion:  The police chief, if any of the hypotheses of  articles 52 or 254 are present , must declare himself a suspect in order to preside over the investigation.

Interpreting article 107: Literally, article 107 prohibits the investigated or indicted person from raising suspicion against the police authority in the acts of the investigation, that is to say, he cannot petition in the investigation asking for the removal of the police chief. The will of the legislator seems to be different. It is to prohibit recourse to the Judiciary. It is to shield the police authority against any judicial measure that seeks to remove it based on suspicion. Neither the literality of Article 107 nor the will of the legislator are correct or reflect the will of the law which, ultimately, is what counts. It is the police investigation that, most of the time, bases the criminal action. It contains evidence and evidence relating to authorship and materiality. The basis, the substratum of the criminal action is in the inquiry. It is the police investigation that provides just cause for criminal action. are inadmissible, father of the offended , for the  brother of the offended , for the  victim of the crime. The support of the criminal action is in the investigation. This seat cannot be vitiated by suspicion and mistrust, bordering on immorality. If the criminal procedure becomes unworthy, criminal justice falls into disrepute. A certain modesty, decency, discretion in the criminal process is required. A process based on an investigation chaired by a suspect delegate, who refused to declare himself as such, failing to comply with his legal obligation, is a process devoid of just cause. On the contrary, endowed with a suspicious cause. It is also important to consider that there are tests that are carried out at the investigation stage that cannot be renewed in court. Only the suspect will have presided over them. In view of these considerations, it is concluded that suspicion can indeed be opposed to the police chief. It can be directly opposed to it. If you refuse, the administrative resource is for its hierarchical superior, who, in the case of the State of Rio Grande do Sul, is the Chief of Police. The defendant may also enter with habeas corpus , aiming to remove the chief of police from presiding over the inquiry. In addition to all the arguments put forward here regarding the possibility of removing the suspected police authority from presiding over the investigation, there is one more: if it is possible to exclude the participation, at the investigation stage, of both the suspect body of the MP and the judge, as examined in the subtitle  Exception of suspicion of the judge and the Public Prosecutor at the stage of the investigation  of the title Exception of suspicion, power of attorney with special powers and witnesses, in comments to article 98, why would it not be possible to remove the police authority? If the process is in progress with the complaint offered and received, it lacks just cause, and  habeas corpus is applicable directed to the court. The suspicion of the chief of police extends, by analogy, to the police clerk assigned to the investigation ( article 274 of the CPP ). Suspicion is not grounds for annulment of the process. There is no question of nullity, but of absence of just cause.

Jurisprudence

Suspicion of the police authority does not annul the process:  The suspicion of police authority verified in an investigation is not a reason for the annulment of the criminal process ( RHC 131.450, rel. min. Cármen Lúcia, judgment on 5-3-2016, DJE of 5-17 -2016  – Bulletin 824, Second Panel).

Suspicion by the police authority does not nullify the process: The lack of affirmation by the police authority of its own suspicion does not invalidate the judicial process by itself, being necessary to demonstrate the damage borne by the defendant ( REsp 1.942.942-RO , Rapporteur Justice Ribeiro Dantas, Fifth Panel, judged on 08/10/2021).

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