Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 3-F CPP – Confidentiality and respect for image.

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Art. 3rd-F. The guarantee judge must ensure compliance with the rules for the treatment of prisoners, preventing the agreement or adjustment of any authority with press agencies to exploit the image of the person subjected to arrest, under penalty of civil, administrative and criminal liability. (Included by Law No. 13,964, of 2019)  (Effective)
Sole paragraph. By means of a regulation, the authorities must discipline, within 180 (one hundred and eighty) days, the way in which the information on the arrest and the identity of the prisoner will be standardized and respected the normative programming alluded to in the caput of this article , transmitted to the press, ensuring the effectiveness of criminal prosecution, the right to information and the dignity of the person subjected to imprisonment. (Included by Law No. 13,964, of 2019)  (Effective)

Articles 3-A, 3-B, 3-C, 3-D, 3-E and 3-F suspended sine die by injunction granted in ADIs 6,298, 6,299, 6,300 by Justice Luiz Fux.

Confidentiality and respect for the image

Secrecy of the investigation: If there is no real and demonstrated need to publicize the investigation, secrecy must be maintained in consideration of the privacy of the investigated person, as he is nothing more than a suspect (  in dubio pro reo principle ). It is the duty of the police authority to ensure the external secrecy of the police investigation. It is in society’s interest to maintain the secrecy of the investigation, as the presumption of innocence militates in favor of the investigated person. It goes against social interest and the principle of security to damage the honor and reputation of investigated persons. External secrecy is the rule of investigations. According to the interpretation of article 20 of the CPP , the authority must ensure the secrecy of the investigation, since respect for the investigated person’s reputation is of thesociety’s interest . Only exceptionally, if there is a need for investigation, is advertising authorized.

Prohibition of agreements and arrangements with the press: What type of agreement or arrangement is the authority prohibited from entering into with press organizations to exploit the image of the person subjected to arrest? Anyone. Agreements involving values, which is unusual, are prohibited. What can happen in practice, and which, it should be noted, is also forbidden, is for the investigating authority to offer news related to prisoners or investigations and receive in exchange the publication of reports favorable to the investigative action. Another prohibited practice is to give exclusivity in the provision of information to some journalists, that is, those who publish news favorable to the investigation and the authorities involved in it. Image exploitation is not just the reproduction of the body or face, it is also the exploitation of the investigated person’s honor and reputation.

Breach of secrecy and crimes: Submitting a mere suspect to public execration constitutes a crime of breach of functional secrecy ( CP, art. 325, caput ). Disclosing a recording or an excerpt of a recording unrelated to the evidence to be produced, exposing the intimacy or private life or harming the honor or image of the person being investigated or accused constitutes an offense provided for in article 28 of Law n . 13,869/2019 (abuse of authority law). Anticipating, through communication, including social media, attribution of guilt, before the investigations are completed and the accusation formalized is a crime described in article 38 of Law n. 13,869/2019 .

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