Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 24 CPP – Public criminal action, representation, requisition, classifications and principles of criminal action, accusatory and inquisitive systems, denouncement and complaint, complex crime, presence of the right and duty to denounce, proof of materiality.

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Art. 24. In crimes involving public action, this will be promoted on the basis of a complaint by the Public Prosecutor’s Office, but will depend, when required by law, on the request of the Minister of Justice, or on the representation of the victim or whoever has the capacity to represent him.
§ 1 In the   event of the victim’s death or when declared absent by court decision, the right of representation shall pass to the spouse, ascendant, descendant or sibling.   (Sole paragraph renumbered by Law No. 8,699, of 8.27.1993) 
§ 2 Whatever   the crime, when committed to the detriment of the property or interest of the Union, State or Municipality, the criminal action will be public.   (Included by Law No. 8,699, of 8.27.1993)

From article 24 to 62, when citing, refer: MEDEIROS, Flavio Meirelles. Code of Criminal Procedure Commented . https://flaviomeirellesmedeiros.com.br : 2019
or
Medeiros, Flavio Meirelles. From the criminal action. Porto Alegre: Lawyer’s Bookstore, 1995.

criminal action

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First notion:  As for its legal nature, the theories of the process as a  contract , as a  quasi-contract , as  a legal institution , as  a legal situation having been overcome, the conviction, widely spread, was established that the process constitutes a true  legal relationship . The process is action, jurisdiction and the relationship between both. The process is the legal relationship that links the parties to the judge, that is, the action (and exception is action) to the jurisdiction. Viewed in this way, criminal action is the right to demand judicial-criminal provision (which has as its object the application of criminal law). This right is held by both the author and the accused of the criminal process.

The right of Criminal Action does not presuppose the existence of the crime:  The criminal action, as a right of the party, does not presuppose the existence of the crime, it only requires the probability that a crime has occurred. There can be exercise of the right of criminal action without there being a crime: this is the case of the accused acquitted at the end of the process in which the non-existence of the crime is recognized. In this process, although there was no crime, there was exercise of the right to criminal action. Thus, it appears that criminal action is completely independent of the existence of the right to punish. The criminal action does not arise from the crime, but from the suspicion of its practice. From which it is concluded that the substantive legal relationship (the criminal law relationship that binds the citizen to the State) is independent of the procedural legal relationship.

How the story is incorrectly told:  The offense is committed. The punitive pretension of the State is born. Criminal action is proposed. Through the process, the defendant resists the punitive claim of the State. It’s a  story  repeated by some writers for many years. It’s incorrect. His mistake lies, in our view, in the cultural difficulty that exists in distinguishing “defendant” from “guilty” in the criminal process.

How the story really unfolds:  The commission of a crime is only, and only, a hypothesis. The probability of a crime and its authorship gives birth to the right of criminal action. The effective existence of the right to punish is unknown. On the one hand there is the right of action. On the other, the right of exception of the accused (which is equivalent to the right of action). Both rights claim jurisdiction and concern the procedural relationship. On the material level, either the State’s criminal right to punish or the accused’s criminal right not to be punished is present. The sentence will tell which one is present. Criminal litigation is the procedural controversy established as a result of the dissatisfaction of the substantive criminal claim. Unsatisfied claim that it is either the accused or the State. For a better understanding of this subject, we refer to the Chapter 19 – The Litigation  of our Brief General Theory of Criminal Procedure.

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Types of criminal action

What characterizes the action as criminal:  What characterizes the action as criminal in nature is the relationship it has with the right to punish. If the action is directly or indirectly related to the right to punish, the action is criminal. It should be noted that it is not necessary for the action to have the purpose of applying a rule of criminal law, as it may have the sole purpose of complying with a criminal procedural rule. It is the use of criminal procedural law for the purposes of its own application. The instrument at the service of the instrument. Example:  habeas corpus  filed with the aim of recognizing the invalidity of the criminal procedure due to the absolute nullity of the procedural relationship.

Types of criminal action:  Alongside the best-known criminal action, the condemnatory criminal action, which aims to declare and constitute a right in favor of the State (declare the right to punish and constitute the right to execute), there are other criminal actions: declaratory, executive and precautionary criminal action. An example of declaratory criminal action is the  habeas corpus  seeking to recognize the lack of just cause. Executive criminal action is the execution of the condemnatory action. Precautionary criminal action, the one tending to the application of preventive detention.

Request and decree of preventive detention seen as an autonomous precautionary action:  It will be said that, in this case, what there is is a mere incident of the condemnatory criminal action. No reason though. Even if the  incident is verified in the course of the condemning criminal action, and not before – a possibility that reveals that it is an action and not a simple incident –, it is a criminal action. It matters little that it is verified in the records of the condemning action, and that the parties are the same. It is an autonomous action, since it has a different cause of action and a different request in relation to the condemnatory action. In the condemnatory action, the cause of action is the probability of committing a crime, in the preventive action it is the need to remove the accused from the community; in the condemnatory, the request is for the accused to be sentenced to serve the sentence for a specified period, in the preventive, the request is for the accused to be temporarily removed from social life (while the reasons of necessity persist). It is true that there are similarities between the cause of action and the request. 

The criminal case contains two criminal actions: The condemnatory criminal action contains two criminal actions. Its inner dynamic consists of two actions, that of the perpetrator and that of the accused. Both criminal actions claim jurisdiction and application of criminal law. The author asks for the recognition of the authorship, the crime and the application of the sentence. That of the accused asks for the acknowledgment or denial of authorship or crime or the presence of extinct circumstances of punishment or that reduce the penalty or the application of any other penal norm that benefits him. Although the procedural legal relationship is unitary, it is composed of a series of sub-relations. The main poles of origin of these sub-relationships derive either from the criminal action of the author or from the criminal action of the accused. These two criminal actions are the main legal relations of the procedural complex. Legal relationships follow each other. Fulfilling your obligations gives rise to new relationships. It is the dynamics of the process. Legal situations are a snapshot of these relationships: a static image of relationships at a given procedural moment.

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 The condemnatory criminal action. Classification

Every criminal action is public:  Every criminal action is public. This is because criminal action is a subjective constitutional and procedural right. It originates from two branches of public law: constitutional law and procedural law. 

Classification of criminal action:  Having made the reservation above, the doctrine has classified, for didactic reasons, criminal action, in terms of active legitimacy, into public criminal action and private criminal action. A criminal action is called public when it is proposed by the Public Prosecutor’s Office in crimes subject to public action. The name of private criminal action is given to that which is proposed by the offended party, his representative or successors. Public criminal action, in turn, is divided into unconditional public criminal action and conditional criminal action (either representation or requisition). Unconditional public criminal action  is  proposed by the Public Prosecutor’s Office in crimes subject to public action regardless of any condition. The  conditional criminal action is the one whose filing by the Public Prosecutor’s Office in crimes of public action depends on the existence or representation (of the victim or his representative) or request (from the Ministry of Justice). As for the private criminal action, there are three types: the  exclusively private criminal action , the  subsidiary private criminal action  and the very personal private criminal action. The exclusively private or private criminal action of the offended party is proposed by the offended party or his representative in crimes involving private action. The subsidiary private criminal action is proposed by the victim or his representative in crimes involving public action when it is not brought within the legal period. A very personal private criminal action is one that can only be proposed by the offended party and no one else.

Principles and interpretation of the criminal procedural norm

Principles and interpretation:  We suggest reading the titles  Two constitutional principles give rise to two major principles of criminal procedure  and  Constitutional origin , in which we deal with the influence of principles in the interpretation of the norm of criminal procedure.

Origins of the principles of criminal procedural law:  The informing principles of the criminal procedure originate from the meaning of the process as an individual guarantee and others from the unavailability of the material legal relationship. 

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Public and private criminal action govern: instrumentality, party initiative and indivisibility

Principle of instrumentality:  The principles of instrumentality, initiative of the party and indivisibility are applicable to both public and private criminal action. The instrumentality of criminal action derives from the fact that the action serves, as a rule, as a means for the application of material norms. The treatise writer Giovanni Leone ( in Treaty of penal procedural law l, Buenos Aires: Legal Europe-America, 1963, v. I, p. 4) contemplated the instrumentality of the procedural norm taking into account no less than five aspects: the historical, the systematic, the strictly legal, the social and the psychological. Let’s see how he did it from the historical and psychological aspects. From the historical aspect there is a logical pre-existence of criminal law over criminal procedural law. First there were the crimes, whose penalties were executed by the offended or their family members. Only later was the process for the application of penalties instituted. The psychological aspect is that the party, when asking for the Judiciary to act, does not want the mere contemplation of the jurisdictional activity with that succession of acts that is proper to it. He does expect the solution of his request through the application of substantive law to the case. sub judice . The instrumental character of the process is so significant that Hélio Tornaghi ( in Institutions of criminal procedure, 2. ed., São Paulo: Saraiva, 1977) correctly considers that a good criminal procedural law is the one that best lends itself to the application of criminal law, that is, it is the one that best lends itself to carrying out the criminal justice with the application of punishment to the guilty and the acquittal of the innocent. But there is a particular aspect in the instrumentality of the procedural norm and, consequently, in the instrumentality of the criminal action. In the criminal area, this instrumentality of the procedural norm has a characteristic that is very particular to it. In the civil area, the substantive right can be exercised independently of judicial intervention. The debts contracted and the duties of the spouses can be paid and fulfilled, respectively, without it being necessary to resort to the norms of civil procedure. In this area, the satisfaction of the substantive claim does not depend on the process.mandatory or necessary . Instrumentality  in  the criminal procedural norm – and in criminal action – is absolutely  necessary . The perpetrator of the crime cannot be punished without the pre-existing criminal action. The State’s punitive claim cannot be satisfied, the State’s subjective right to punish cannot be exercised, criminal law cannot be applied without the exercise of criminal action. In conclusion, while the civil procedural norm is only instrumental, the criminal procedural norm is  instrumental  and absolutely  necessary . 

Principle of initiative of the parties: As for the principle of initiative by the parties, it should be noted that jurisdiction, while not provoked by the party, remains inert. The judge does not grant jurisdiction without being encouraged to do so. A condition for judicial provision is the effective exercise of the right of action. The principle of the initiative of the parties, also called the principle of action, translates the indispensability of the party’s request for the jurisdictional provision to be granted. In order to initiate criminal proceedings, the initiative of the party is required. In crimes involving public action, it is incumbent upon the Public Prosecutor’s Office to carry out the action and, in cases involving private action, the offended party or whoever represents him. If the same person bringing the action were to judge, it would be impractical for him, in that last second moment, to maintain the necessary impartiality. 

The principle of indivisibility:  The principle of indivisibility does not mean that charges must be filed against all defendants. It has the meaning that the complaint should be filed only against the accused in relation to whom there is just cause to propose the criminal action. Indictment does not necessarily mean the presence of just cause.

They govern only public criminal action. Obligation, unavailability and officiality

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Mandatory principle: The principles of obligatoriness, unavailability and officiality are principles of public criminal action. The principle of legality, also called the principle of obligatoriness or inevitability of action, is based on the interest of the community in the performance of criminal law. If there is sufficient evidence of the commission of the crime and authorship, the Public Prosecutor’s Office has the obligation to promote criminal action. The body in charge of promoting the criminal action does not have discretionary powers. The principle of legality does not apply only to criminal action and proceedings; its effectiveness extends to encompass all state prosecution activity. Thus, the principle also applies to police investigative activity. Faced with the occurrence of a fact with the appearance of a crime, the police authority has the legal duty to initiate investigations. Ancient writers maintained that from the precepts of criminal law (“whoever does this is punished in this way”) one could draw the conclusion that not only a public criminal claim arises from them, but also, at the same time, the absolute duty of the state authorities from carrying out the prosecution and punishment of the culprits. Today, among us at least, it is argued that the persecutory obligation of the State derives, expressly, from the procedural law. Indeed, it is categorical it is argued that the persecutory obligation of the State derives, expressly, from the procedural law. Indeed, it is categorical it is argued that the persecutory obligation of the State derives, expressly, from the procedural law. Indeed, it is categorical Article 24 of the Code of Criminal Procedure :  in crimes involving public action, this will be promoted (…). In the Brazilian system, if there is sufficient evidence of crime and authorship, the Public Ministry has the obligation to initiate criminal proceedings. What if the prosecutor understands that the information he has is not enough? In this case, it does not promote criminal action. Does this “non-promotion” not represent a mitigation of the principle of legality? No, it just means that the abuse of power is not in the interest of the legal order. It would be an abuse of the power of denunciation if, faced with the slightest suspicion, the citizen was subject to the inconveniences of being accused of criminal proceedings. The principle of legality prevails in our legal system without mitigation, since, when the Public Ministry chooses not to promote the action, determining the archiving of the informative pieces, it must present reasons; these reasons, which cannot be of convenience or utility, must be, that yes, that yes, in the sense that there is not enough evidence of the commission of a crime or who is the author. What happens between us is that, if the Public Prosecutor’s Office decides, arbitrarily, based on political criteria, not to promote the action, there is no way in the legal system to overcome this inertia (unless there is a substitute private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). arbitrarily, due to political criteria, due to the non-promotion of the action, there is no way in the legal system to overcome this inertia (unless there is a substitute private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). arbitrarily, due to political criteria, due to the non-promotion of the action, there is no way in the legal system to overcome this inertia (unless there is a substitute private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). 

Principle of unavailability:  The criminal procedure – and the criminal action –  is  unavailable for an indirect reason. Its unavailability is mirrored by that of its object. There is public interest in determining the real legal relationship of criminal law that binds the State to the citizen, and it follows that the parties to the process do not have the power to dispose of that relationship. In some provisions of the Code of Criminal Procedure, we are faced with express consequences of the principle of unavailability. Once the action is proposed, the Public Prosecutor’s Office can no longer withdraw it ( article 42 ). Nor can he withdraw an appeal that he has filed ( article 576). In crimes subject to public action, the judge may issue a condemnatory sentence, even if the Public Prosecutor’s Office has opted for acquittal ( article 385 ). In crimes subject to conditional public action, representation is irreversible after the complaint has been filed ( article 25 ). The unavailability of the material legal relationship also produces effects outside the process. By provision of  article 17 of the Code of Criminal Procedure, the police authority cannot have the investigation files archived. Also derive from the principle of unavailability the impossibility of carrying out in criminal proceedings those forms of composition of disputes that occur in the civil area, such as transaction, conciliation and arbitration commitment. The Public Prosecutor’s Office and the accused cannot make agreements, inside or outside the process, for the application of a less serious penalty or for the substitution of legal penalties for pecuniary compensation. Nor can they opt for a third judge: they can only judge the magistrate with jurisdiction and competence for the specific case. The principle, as we have seen, also applies to the appeal phase, prohibiting the withdrawal of an appeal filed by the Public Prosecutor’s Office; but considering that he and the defense can choose to interpose, and that the latter can give up on him, it is to be concluded that the device principle predominates in this phase. An exception to the principle, in the Brazilian legal system, occurs in crimes of private action in which there is a provision on the relationship of criminal law through the institutes of pardon, waiver and peremption. Another exception is the case of plea bargaining, which is foreseen in some special laws (the Law n. 12,850/2013, which deals with the crime of criminal organization, is the main one), in which an agreement is reached between the informer and the Public Ministry. The whistleblower promises to provide evidence of participation in crimes against people who will be reported, and the Public Ministry offers benefits to the whistleblower (a milder punishment, for example). All statements by the whistleblower, while isolated, unaccompanied by evidence, are worth absolutely nothing. It does no good, as long as it proves, to line up whistleblowers. Nor is the testimony of whistleblowers useful in related processes, as whistleblowers are under duress. Legal duress, but duress anyway. Free conviction has limits. There is also, in the special court, a hypothesis in which the Public Prosecutor’s Office may, if certain conditions are met, propose the immediate application (before offering the complaint) of a penalty restricting rights or fines. There is also a non-prosecution agreement for less serious crimes. Lastly, in crimes of tax evasion, tax evasion and misappropriation of social security contribution, the punitive claim is suspended while the installment payment is being paid, provided that the installment request has been formalized before the receipt of the complaint (see article 83 of Law n. 9,430/96 ).

Principle of officiality:  There is public interest in determining the legal relationship that binds the State to the citizen. This interest stems from the unavailability of the substantial legal relationship, which is the subject of the proceeding. From the unavailability of the object of the process, it follows that the State’s right to investigate it is also a duty. Being a duty of the State, it cannot be entrusted to individuals, as they could, for various reasons, prefer inertia. Hence the reason for the institution of a state body for the promotion of criminal action, which is the Public Prosecutor’s Office. This is the  official  body in charge of promoting criminal action.

Doctrine

Afrânio Silva Jardim:  The North American influence in the Latin criminal procedural systems – by afrânio silva Jardim . Emporium of Law.

Afrânio Silva Jardim:  Two texts against the undue and inconvenient importation of North American criminal procedural institutes. . Emporium of law.

Afrânio Silva Jardim:  The principle in “dubio pro societate”: the great and common mistake. Emporium of law.   

Alexandre Wunderlich:  Emergency laws brutally restrict fundamental rights . Conjure

Ana Margarida Pratas Correia Shirley de Oliveira :   The agreement in criminal proceedings – a path already started in Portugal . repository.ul.pt

Andre Luis Callegari. The injustice of the American model of plea bargaining . Conjure

Danni Sales Silva :  Negotiated criminal justice . University of Lisbon. law School

Felipe Luchete :  Council changes rule that allowed the Public Prosecutor’s Office to pardon anyone who confesses .  Conjure

Francine Nunes Arantes :  Consensual justice and efficiency of criminal proceedings . repository.ul.pt. 2015

José Carlos Abissamra Filho Why do they want the  plea bargain  or the criminal agreement in Brazil?  Conjure 

Luiza Farias Martins:  The “informant for good” (whistleblower) in the government’s “anti-crime” project . Conjure

Miguel Reale Júnior and Alexandre Wunderlich:  Negotiation justice and the void of the Anticrime Project . ibccrim.org.br

Vinicius Gomes de Vasconcellos :  Bargaining and negotiating criminal justice: analysis of trends in the expansion of consensus spaces in the Brazilian criminal process .  tede2.pucrs.br

Vladimir Aras:  Criminal transaction in Special Criminal Courts .  jus.com.br.

They only govern private criminal action. Opportunity, availability and unofficiality

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Principle of opportunity:  The principles of opportunity, availability and non-officiality are principals of private criminal action. Opposite principle to legality is opportunity. By this last principle, action is not obligatory. It is triggered or not based on criteria of convenience and utility. In the action of crimes of private action and in those of public action conditioned to the representation or request, the principle of opportunity prevails. The exercise of the action depends on the will of individuals or the Minister of Justice. 

Principle of availability:  With regard to the principle of availability, it is present in the action of crimes of private action in which there is a provision on the criminal law relationship through the institutes of pardon, waiver and peremption. It is also present in crimes of public action conditioned to representation.

Principle of non-officiality:  Non-officiality  prevails in private actions, since it is the offended party or its representative who proposes the action, and not an official State body.

The criminal action. Accusatory or inquisitive?

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Persecution system adopted in Brazil:  The Brazilian criminal prosecution system takes place in two phases: the inquiry phase and the procedural phase.

Accusatory and inquisitorial systems. The fundamental difference: What distinguishes the accusatory system from the inquisitive is not the functions of accusing, defending and judging accumulated in a single organ in the inquisitive system and these same functions distributed by different organs in the accusatory. This conformation considers mere external consequences of the true distinguishing feature of systems. What substantially distinguishes the accusatory from the inquisitorial are the powers that are granted to the judge. In the accusatory type process, the judge does not have powers to investigate the truth. He judges according to the evidence provided by the parties. In the inquisitorial, on the contrary, the judge has broad powers to investigate the facts. This is the essential difference between the two systems. The distribution of functions in the prosecution are nothing more than a consequence of the impossibility of the judge instructing the cause.

The inquiry is fundamentally inquisitive:  The inquiry is an administrative procedure. It is regulated by administrative law. It is a public administration activity. The norms that regulate it find support in the principle of constitutional security ( article 5,  caput  and  article 144,  caput  of the CF). This is the principle that prevails in it: that of security. Article 144 of the Constitution states that public security, the duty of the State, the right and responsibility of all, is exercised for the preservation of public order and the safety of people and property, through a police body. In order to carry out this activity, it is necessary to prevent and repress crimes. You need to investigate the truth. Establish the real legal relationship of criminal law that binds the State to investigated. The acting is inquisitive. On the other hand, inquisitoriness is not absolute and unrestricted. Article  5 of the CF, in the  caput , guarantees freedom to all Brazilians, and in  item LVguarantees to litigants, in judicial or administrative proceedings, and to the accused in general, the contradictory and ample defense with the means and resources inherent to it. The defender, in turn, has, according to  article 7, item XXI of Law n. 8.906/1994  (Statute of the OAB), the right to assist its investigated clients during the investigation of infractions, and may even, during the respective investigation: a) present reasons and questions (…). Pursuant to  article 7, item XIV of Law no. 8906/1994 , the lawyer has the right to examine files of flagrante delicto and investigations of any nature, concluded or in progress, even if concluded by the authority, being able to copy parts and take notes, in physical or digital media. There is also the  binding Precedent 14 of the STF : It is the defender’s right, in the interests of the defendant, to have broad access to the evidence that, already documented in an investigative procedure carried out by a body with judicial police competence, concerns the exercise of the right of defense (see jurisprudence subsequent to the publication of  the  Precedent). Yes, the inquiry is predominantly inquisitive, but there may be defense participation. The refusal of due diligence or any measure taken by the investigated person by the police authority may be subject to review by the judicial authority. As the police authority is, in theory, impartial, the investigation in the inquiry can take the course in favor of the accused. Including measures requested from the judge by the police authority itself, including interception of data and telephone communications, environmental recording, house searches, breach of bank and tax secrecy. These measures can, of course, also be requested by the investigated person in the  habeas corpus way. There is also the possibility for the investigated/indicted/accused to provide defensive investigation, which is not to be confused with the institute of criminal investigation. On defensive investigation, see the heading  Listening to the accused. Defensive investigation (item V , in comments to article 6, item V. 

The criminal procedure is an accusatory/inquisitorial composite:  The Brazilian criminal procedure came to the world as an amalgamated accusatory/inquisitorial. With the passage of time, with the hierarchical force of the 1988 CF and some legislative modifications focusing on it, the accusatory principle began to prevail. It’s good coding. It needs some changes, especially in the recursal part. It is necessary to adopt, with the necessary adaptations, the interlocutory appeal of the civil procedure in place of the appeal in the strict sense. Some of the CPP provisions need to be expressly revoked. The custody hearing needs some improvement with its introduction into coding. There is inquisitorialness in it. Constitutional and legal inquiry. And necessary to some extent. The adversarial system stems from the article 129, item I of the Federal Constitution , which states that it is the institutional function of the Public Prosecutor’s Office to privately promote public criminal action. The verb “promote” is significant. That is to say: to enable, to allow, to encourage, to articulate, to impel, to animate. If the prosecution were to completely remove the inquisitority and if it were the only principle to apply, the judge would be absolutely prevented from determining any evidentiary measures. And not only that, the judge could not even proceed with the process, pushing it. A judge immobilized watching the parties in front of him pirouette with the truth, this is the accusatory utopia. The value of the accusatory principle has been maximized. Too much medicine turns into poison, said Paracelsus, a doctor of the sixteenth century. Well then. Other principles affect the process, and these will authorize the introduction – necessary – of a certain measure of inquisition in the procedural instruction. 

The process needs inquisition:  The adversarial system has been overvalued as if it were capable of solving all procedural problems. If this system were adopted in its purity, it would lead to mismanagement of the process. The following principles, among others, would be banned: that of real truth, that of official impulse and that of officialdom. In the course of the process, suspecting the innocence of the accused, the judge could not order diligences in search of the  real truth  in favor of the accused. could not  boost the process and, consequently, the Public Prosecutor’s Office would have absolute control over the progress of criminal actions. The prosecution would be able to assemble an extensive file of defendants with suspended proceedings. The Public Prosecutor’s Office would have the right to punish a number of accused with a period of validity until the statute of limitations. This would give the prosecutor extraordinary bargaining power with these defendants. Much superior to the power that is granted in the plea bargain, because in this institute there is judicial control. The principles of legality and legal certainty would go down the drain. And with regard to  officialdom , without it, the prosecution would be carried out by private individuals, which would be a historical setback. and  habeas corpus ex officio paragraph 2 of article 654? It is granted irrespective of any requests by the parties. Excluding the inquisitoriness of the process, that is, removing the possibility of the judge to launch ex-officio decisions, the   ex-officio hc would be prohibited. Another analogous example in which the judge’s hands are tied for lack of inquisitoriness: the defense maintains unimputability, and the judge, even having good reasons to suspect that the accused is not the author of the crime, cannot determine steps to prove his suspicions.

The door through which the inquisition enters: The inquisitority enters the process with the constitutional principle of security, its source. It is a matter of security that criminals are punished and innocents acquitted. The unavailability and execution of the legal relationship of criminal law contained in the criminal procedure come from the need for security. In the material legal relationship, the accused can occupy both the active position, holding the right to freedom, and the passive, with the obligation to subject himself to the penalty. The principle of constitutional security entails the unavailability of the object of the process (the material legal relationship). From the unavailability of the object of the process, that is, from the principle of constitutional security, derive the following principles: legality, real truth, officiality, official impulse, unavailability of the process itself. 

Process as an individual guarantee limiting the inquisitorial nature:  If, on the one hand, security and its principles enter the process, on the other hand, the constitutional principles that give the process its meaning as an individual guarantee, namely: contradictory, due process, double degree of jurisdiction, independence of the judge, presumption of innocence (under its two manifestations, that of  in dubio pro reo  and that of  favor rei ), initiative of the parties,  ne eat judex ultra petita partem , natural judge, ample defense and the accusatory principle. The proximity of the real truth (since reaching it is impossible) is distorted with the investigation of the trade, and is sought with the initiative of the parties and the contradictory. Item II of article 156 of the CPP is clear enough: the judge can only determine,  during the course of the instruction ,  or before issuing a sentence , to carry out steps to resolve doubts on  a relevant point . It is worth mentioning that,  only exceptionally , can the judge order diligences. It is not up to the judge to replace the accuser, since, as provided for in  article 129 of the CF, item I ,  the Public Ministry’s institutional functions are: to promote, privately, the public criminal action, in the form of the law. However, since it is the exclusive competence of the Public Prosecutor’s Office to promote criminal action, the judge cannot interfere, supplementing, assisting, supporting and complementing the ministerial activity. A judge is not a substitute or substitute for the accuser. He bears no responsibility for the accusation. On this subject, see the title  The Prosecution Orders, The Defense Asks. The fable of equality in the criminal process  in comments to article 156. 

With regard to criticisms of the principle of real truth: Although the thesis has notable followers, we are not convinced by the idea that the search for truth transforms the judge into an inquisitor. The principle of real truth is not a jurisdictional function, but a principle of the process. The process seeks the truth. It never reaches it, since we live in a different dimension. But try to get close to her. The way in which the process tries to approach the truth is through due process with its principles: full defense, contradictory, accusatory, official impulse, etc. If the judge turns into an inquisitor, under the justification of pursuing the real truth, he is, on the contrary, literally rejecting the application of the principle of real truth. Inquisitively, he sneaks away from the truth to meet his subjective ideations. The inquisitive judge is the denial of the real truth. In the Brazilian criminal repression system, the inquisitive phase, the collection of evidence, the partiality phase, has its turn, it is the police. Once it is over, the procedural contradictory begins. In it, the truth will be established with the initiative of the parties, with the magistrate as an equidistant observer. His investigative interventions will be exceptional, limited.

the complaint

General notions:  The initial petition is for the civil action what the complaint is for the criminal action. The complaint is the inaugural piece of the criminal process. It is the offering of the complaint that marks the beginning of the criminal action. Not your receipt. The action is the right to judicial provision. The right to jurisdiction and the corresponding duty of the judge to provide it arise not from the receipt of the initial procedural document, but from its presentation. The offering of the complaint gives rise to the procedural duty of the judge to appreciate it, either to receive it or to reject it.

The right and duty to denounce:  It is examined in the title  The Right and Duty to Denounce  in annotations to the present article 24 of the CPP.

Denunciation requirements and voids:  The denunciation requirements and voids are discussed in the comments to  Article 41 . 

Rejection of the complaint:  In the comments to  article 395 , we examined the cases of rejection of the complaint.

Representation

Reference:  The institute of representation is examined in comments to  Article 39 . For the time being, just mentioning that representation is the offended party’s authorization so that, in some crimes of public action, criminal action can be initiated. See title  The victim’s representative ,  in notes to this legal device.

The so-called “mixed norms : See this same subheading under the heading Criminal law and criminal procedure in time, in comments on Article 2 .

Request

https://youtube.com/watch?v=IXpjBaAS5sA%3Ffeature%3Doembed

Definition:  The requisition is an act of a political nature through which the Minister of Justice authorizes the filing of criminal proceedings by the Public Ministry for certain crimes.

Crimes whose prosecution depends on the requisition:  Depend on the requisition: a) crimes committed by foreigners against Brazilians outside Brazil ( CP, article 7, § 3, “b ”); b) crimes against honor committed against the President of the Republic or against the head of a foreign government ( CP, article 141, I,  with the  sole paragraph of article 145 of the CP ).

Revocability of requisition:  Once the complaint has been offered, the requisition is irreversible, just as the representation is irreversible ( article 25 ). Before the complaint is offered, there is no impediment to withdrawing the request. There is no prejudice to the right of the author of the crime, on the contrary. Furthermore, the requisition is an act of a political nature in which a judgment of political expediency prevails. Mutable by nature (DELMANTO , Celso. Penal Code Annotated.  4. ed. São Paulo: Saraiva, 1983).

Moment and effects of the requisition:  The requisition can be made at any time while the punishment is not extinguished, not being subject, therefore, to decay. As for its effects, the requisition does not bind the Public Prosecutor’s Office in the sense of mandatory filing of the action. Even if there is a request, it is incumbent upon the Public Prosecutor’s Office to examine the presence of the necessary requirements for the filing of the complaint. Request is not order. It should be understood as a request, but which, being in compliance with the law, must be forwarded to the request. 

 Complaint

https://youtube.com/watch?v=OJorDKTwDc0%3Ffeature%3Doembed

Brief considerations and reference: The initial petition is for the civil process what the complaint is for the criminal process. It is added: the denouncement is for the public criminal action as the complaint is for the private criminal action. Private criminal action begins with the filing of a complaint with the judge. The complaint must contain the same elements as the complaint, in particular, the description of the alleged criminal act and the request for conviction. The record of occurrence made by the reporter before the police authority should not be confused with the institute of the criminal complaint. That record is nothing more than a crime report (although it is not very technically referred to as a “complaint”) made before the police authority. The criminal complaint has another destination. It is addressed to the judge and is a procedural document, in fact, the first procedural document of the private criminal action. The offer of complaint is appropriate both in crimes of private action (and those are crimes of private action whose prosecution the law, expressly, depends on the complaint) and in crimes of public action, when this is not proposed within the terms of the law. The complaint in crimes of public action (subsidiary private action) is examined in the comments to the article 29 . On the complaint in general, see comments on  Articles 30 ,  41  and  43 .

Crimes of private action and public action. Distinction

https://youtube.com/watch?v=tkFd8jQyYhQ%3Ffeature%3Doembed

Distinction:  How to know if a crime is a private action or a public action? Simple. As a general rule, crimes are subject to unconditional public action, that is to say, the Public Prosecutor’s Office proposes criminal action by offering the complaint regardless of any condition. When the crime involves a private action, the law will expressly say so, normally inserting the following information in the text:  only proceeds upon complaint . Likewise, if the offense involves public action subject to representation. If there is no exception, the offense is an unconditional public criminal action.

Legislator’s Criteria:  There is always a public interest in the criminal prosecution of offenders. However, in certain crimes, in view of their characteristics, the State relinquishes the public interest in favor of the interest of the individual, leaving the decision as to whether or not the criminal action is convenient. This is especially true of those crimes capable of seriously affecting the privacy of the individual, and in which, often, a criminal prosecution, such as strepitus fori ,  can mean greater harm for the victim of the crime than the penalty itself for the offender. Basically, it can be said that it is out of respect and consideration for the feelings of the victim that certain criminal actions, in order to start, need their authorization. 

Interpretation of the norms that regulate representation :  It is in consideration of the feelings of the victim that certain criminal actions, in order to start, need his authorization. This results in an important conclusion, extremely useful for the interpretation of the norms that regulate representation. That representation is an institute created in favor of the victim, not the defendant. When in doubt, the norms that regulate it must be interpreted in favor of the will and interests of the victim.

Criminal action in complex crime

Brief note:  Pursuant to  Article 101 of the Penal Code , when the law considers as an element or circumstances of the legal nature facts that, by themselves, constitute crimes, a public action may be taken in relation to the former, provided that, in relation to any of these, whether to proceed on the initiative of the Public Prosecution Service. Damásio de Jesus ( in Code of Penal Process Annotated,  8. ed., São Paulo, Saraiva, 1990) in comments to  article 24 , records the flagrant uselessness of this provision, which may even cause doubts. As the eminent professor observes, in the face of a complex crime, to know if it is a public or private action, it is enough to verify if the penal norm dealt with the criminal action. If not treated, the crime is a public action. 

The right-duty to denounce

https://youtube.com/watch?v=nqUpYGZ_NbE%3Ffeature%3Doembed

The conservative position:  Given the requirements for filing a complaint, the Public Prosecutor’s Office has a duty to report. It is a peaceful assertion, whose validity derives from the principle of mandatory criminal action. However, when it comes to establishing  what are the requirements for offering the complaint , divergence begins. According to the conservative current, which seems to predominate in doctrine and jurisprudence, for the filing of the complaint, the typical fact and the evidence of authorship are sufficient. José Antônio Paganella Boschi ( in Criminal Persecution,  Rio de Janeiro, Aide, 1987, p.164) supports the validity of the conservative position. He says that, at this stage, the Public Ministry cannot examine the merits of the case, under penalty of overriding the jurisdictional body. It affirms that the criminal process also represents a guarantee of the citizen, who, innocent, has the right of this declaration through the acquittal sentence. It adds to its argument practical reasons, such as, for example, the need to confirm the veracity of the fact represented by the evidence of the investigation. Boschi is well accompanied. Tourinho Filho, following Florian, states that the complaint should be filed if the following general assumptions are satisfied: known authorship, typical fact and more or less reliable evidence regarding the causal relationship (TOURINHO FILHO, Fernando da Costa. Criminal procedure  . 5. ed. New: Jalovi, 1979, p. 352).

The liberal position:  In our view, the conservative position is no longer correct. We are left with the judge from Rio Grande do Sul, Tael Selistre, whose ideas are transcribed by José Antônio Boschi. Tael Selistre argues that the process only makes sense when someone is attributed the commission of a criminal act, that is, when typicality, culpability and unlawfulness are present. He states that this is how the expression  narrated fact evidently does not constitute a crime,  used in  article 43 of the CPP  (currently the subject is regulated by article 395, due to the revocation of article 43), as one of the reasons for rejecting the complaint. The first condition of criminal action is the legal possibility of the request, and this only exists if there is a crime to be investigated, understood not only as a typical fact, but also as an anti-legal and culpable fact (BOSCHI, José Antônio Paganella.  Action criminal law, denouncement, complaint and amendment. 3rd ed. Rio de Janeiro: AIDE, 2002, p. 161). Effectively, the complaint is only appropriate when it is probable that a certain person has committed a crime. Thus, it is necessary (1st) that it is probable that an offense has occurred and (2nd) that it is probable that a certain person has committed it. To be more precise: it is not necessary to prove that the agent did not commit the act protected by the anti-legal exclusion. It is necessary, yes, that the exclusion of unlawfulness is not proven. As for culpability, the same, in order to denounce it, it is necessary that its absence is not proven. The assumptions for filing a complaint are exactly the same as the assumptions for indictment in a police investigation. As a crime it means a typical, unlawful and culpable fact, it is essential for the filing of the complaint: 1st – reasonable evidence of authorship related to the practice of a fact endowed with typicality; 2nd – the absence of intent or guilt has not been demonstrated; 3rd – the absence of a causal link between the action and the result has not been demonstrated; 4th – the existence of an excluding cause of unlawfulness is not proven. And, still, the non-imputability due to minors, the absolute absence of potential awareness of anti-legality (excusable prohibition error) or unenforceability of other conduct has not been proven. 1st – reasonable evidence of authorship related to the practice of a fact endowed with typicality; 2nd – the absence of intent or guilt has not been demonstrated; 3rd – the absence of a causal link between the action and the result has not been demonstrated; 4th – the existence of an excluding cause of unlawfulness is not proven. And, still, the non-imputability due to minors, the absolute absence of potential awareness of anti-legality (excusable prohibition error) or unenforceability of other conduct has not been proven. 1st – reasonable evidence of authorship related to the practice of a fact endowed with typicality; 2nd – the absence of intent or guilt has not been demonstrated; 3rd – the absence of a causal link between the action and the result has not been demonstrated; 4th – the existence of an excluding cause of unlawfulness is not proven. And, still, the non-imputability due to minors, the absolute absence of potential awareness of anti-legality (excusable prohibition error) or unenforceability of other conduct has not been proven. 

Assumptions and conditions of the action:  With regard to the assumptions and conditions of the action, including the absence of lis pendens, res judicata, illegitimacy, absolute incompetence, suspicion, the legal possibility of the request, the interest in acting and the legitimacy , see the heading Presuppositions and conditions of the action in comments to article 395 .

Doubt as a basis for criminal action: The immediate object of criminal proceedings is the delinquent hypothesis contained in the accusatory complaint. Mediate object is the identification of the substantial legal relationship (of criminal law) that binds the State to the accused. Or it is that relationship in which the active subject is the accused with the right not to be punished, and the taxable subject is the State with the duty to ensure that right. Or is it that other relationship in which the State’s right to punish is present with the corresponding duty of the accused to submit to the penalty (a duty of a criminal nature, not a criminal procedural one). While there are no signs of authorship of a crime in relation to a certain person, there is the certainty that he occupies an active position in the legal relationship of criminal law. When there are indications that someone has committed a crime, one remains in doubt as to the identity of the legal relationship of criminal law that links it to the State. Hence, criminal action is born as a right of the State. It is from doubt that the right of criminal action is born. The purpose of the action is to remove, through contradictory procedural instruction, this doubt. Seen from this angle (doubt as a presupposition of the action), it appears that the criminal action cannot have as its origin a fact in which the presence of exclusion of unlawfulness is proven; there is no way for criminal action to be born or prosper based on the certainty of the non-existence of the right to punish. it appears that the criminal action cannot originate from a fact in which the presence of an exclusion of unlawfulness is proven; there is no way for criminal action to be born or prosper based on the certainty of the non-existence of the right to punish. it appears that the criminal action cannot originate from a fact in which the presence of an exclusion of unlawfulness is proven; there is no way for criminal action to be born or prosper based on the certainty of the non-existence of the right to punish. 

Tempering the liberal position:  The liberal position adopted cannot be taken to extremes, to the point of accepting the non-existence of a crime as proven with some helpless counter-indications of the evidential and evidential set. Especially in those crimes in which there are certain victims, such as homicide, when criminal action, among other functions, fulfills its historical role of replacing private revenge. Perhaps, with this consideration, Paganella Boschi’s fair reservations regarding the inquisitive evidence (need to confirm the veracity of the fact represented by the inquest evidence) can be ruled out.

Doctrine

Antônio Martins-Costa and Alexandre Wunderlich:  On the objective criminal liability of business leaders .  Conjure

Aury Lopes Jr. and Alexandre Morais da Rosa (Un)conscious contamination of the judge and physical exclusion from the investigation . Conjure  

Gabriel Bertin:  STJ jurisprudence on the responsibility of administrators for tax debts and the formation of the passive pole of criminal actions in tax crimes.  gabrielbertin.com.br. 

Marisa Alexandra de Brito Gonçalves :  Legal and criminal liability in groups of companies . Law School. University of Lisbon

Valber Melo, Artur Barros Freitas Osti and Filipe Maia Broeto Nunes. Domain theory of command position is distortion of the domain of fact .  Conjure

Jurisprudence

Assumptions of the right-duty to report :  In order to file a complaint, evidence is sufficient, serious suspicion (RJTJRS 75/9), minimal evidence (RJTJRS 81/24), judgment of suspicion, minimally supported by elements of information from the investigation (RJTJRS 117 /45), proof of the materiality of the typical fact and the existence of sufficient evidence of authorship (STJ – Plenum – DJU 08.06.92 – p. 8.594). 

Recognized self-defense before filing the complaint:  It is admissible to recognize self-defense before filing a criminal action, requiring the MP, for this reason, to close the investigation (TJPR – RT 664/303). 

Self-defense and receipt of the complaint : Self-defense. Antilegality exclusion that cannot be examined in the judgment of admissibility of the criminal action. Complaint received. (APN 33, STJ, Full Court, Rapporteur Min. Carlos Thibau, DJU 6.8.92, p. 8.594).

 Lack of evidence of authorship :   The  habeas corpus  does not admit the contradictory or the in-depth examination of the evidence, but, if with the simple look of what is found in the police investigation, it is verified that there are no indications of authorship regarding the patient, being the erroneous denunciation, lack of just cause for criminal action. (RHC 22.661, STJ, Fifth Panel, Rapporteur Min. Costa Lima, DJU 10.26.92, p. 19.064).

The filing of the criminal action only requires the presence of minimal evidence of materiality and authorship, so that certainty must be proven during the probative instruction, prevailing the principle of in dubio pro societate in the phase of offering the complaint. Source: Jurisprudence in theses (STJ). Source: Jurisprudence in theses (STJ).

Judgments:

HC 433299/TO, Rel. Minister Felix Fischer, Fifth Panel, judged on 04/19/2018, DJE 04/26/2018

HC 426706/MG, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 04/17/2018, DJE 04/24/2018

AgRg in AREsp 535230/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 02/20/2018, DJE 03/02/2018

RHC 081735/PA, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/17/2017, DJE 08/25/2017

RHC 054186/SP, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 09/01/2015, DJE 09/11/2015

Evidence of the materiality of the criminal offense

https://youtube.com/watch?v=PxF9hoYl0us%3Ffeature%3Doembed

Requirement for the filing of the complaint:  In order to file the complaint, proof of the materiality of the fact in the infractions that leave traces is necessary, which is carried out through the examination of the forensic evidence.

Examination of the corpus delicti:  Examination derives from the Latin  Examen , meaning pondering, verification. Corpus delicti  is the result of the crime and the set of circumstances. The  examination of the corpus delicti  aims to identify the sensitive consequences of the criminal act. Its purpose is to prove the materiality of the fact. 

Nullity of the process:  Due to the importance of the forensic examination, the criminal procedural legislator, in  article 564, item III, letter  b , sanctions the nullity of the process when the examination of the forensic evidence is absent in crimes that leave traces. Thus, if the crime leaves traces, and no steps are taken to carry out the examination, the process will be void.

Direct and indirect examination:  Article  564 item III, letter  b , makes exception to  article 167 . Except for the provisions of article 167, the process in which the corpus delicti examination is absent shall be null. The wording of article 167 is as follows:  If it is not possible to examine the forensic evidence, because the traces have disappeared, testimonial evidence may make up for it. The testimonial evidence referred to in article 167 is the so-called examination of the indirect corpus delicti. The examination of the corpus delicti, whether direct or indirect, must always be carried out. By determination of  article 158, not even the confession of the accused will be able to make up for his fault. The direct examination of the corpus delicti is carried out by an expert. The indirect through witnesses. The understanding that in the indirect case the witnesses must report to the expert what they witnessed so that he can then make the report is without reason. Witness testimony before the police or judicial authority is sufficient. It should be noted that the authority will only resort to the indirect examination when the direct one is impaired because the traces have disappeared. If the traces disappear due to the negligence of the authority or the expert, due to delay or any other reason for their execution, indirect examination is prohibited, since it is not exactly a question of the disappearance of traces  for  the purposes of article 167.

The indirect examination must be convincing:  Considering that a detailed description is required in the direct examination, carried out by a proven capable person ( Article 160 ), the clarity, certainty and uniformity of the testimonies cannot be dispensed with in the indirect examination. Doubtful testimonial evidence is not a valid substitute for expert examination. 

Jurisprudence

Necessity of the forensic examination to file the complaint :  The absence of the forensic evidence implies the rejection of the complaint (TRF – 4th Region – DJU 24.06.92 – p. 18.684).

Validity of the indirect forensic examination :  The forensic examination is essential when the offense leaves traces, and can be supplied by testimonial evidence (STJ – DJU 21.09.92 – p. 15.704). Only when it is impossible to carry out an examination of the forensic evidence, because the traces have disappeared, can the testimonial evidence supply the lack (STF – RTJ 58/86). 

Misappropriation of social security contributions and expert evidence :  In the inquiry there must be accounting expertise, which reveals the availability of money, which demonstrates the existence of omission in collection. The materiality of the crime that leaves a trace must be proved through the corpus delicti. Don’t stop collecting what you don’t have. The non-existence of the corpus delicti implies the rejection of the complaint. (RCCR 9104098234, TRF-4th, Third Panel, Rapporteur Min. Fábio Bittencourt da Rosa, DJU 24.6.92, p. 18.684).

The victim’s representative

The offended minor:  If the offended is under 18 years old, representation can only be offered by their representative. 

The representative:  The minor’s representative, for the purposes of the provisions of article 24, is not necessarily his father or mother. It can be anyone who is responsible for it. It could be any relative or anyone who has custody. This norm of Article 24 must be interpreted extensively in favor of the victim, since the principle of  favor king  does not apply to norms that deal with representation. 

Death of the offended

Comments:  The statute of limitations for the successor begins to run from the date on which it is known who the author of the infraction is ( article 38, sole paragraph ). If more than one of those listed appears, article 36 applies   by analogy in terms of preference.  

Doctrine

Sílvio César Arouck Gemaque:  The necessary influence of international criminal procedure on Brazilian criminal procedure . jf.jus.br.

Rogerio Schietti Cruz:  Advertising and Confidentiality in Modern Criminal Procedure . Metajus.

Rômulo de Andrade Moreira:  The role of the MP in the prosecution system – A view from the Chilean experience . Jusbrasil.

Fim

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Summary