Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 47º CPP – MP requests and steps.

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Art. 47. If the Public Ministry deems further clarification and  additional documents or new elements of conviction to be necessary, it must request them directly from any authorities or officials who must or can provide them.

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Request for information by the Public Ministry

Constitutionally based institutional function:  According to  article 129, item VIII of the CF , it is the institutional function of the Public Prosecutor’s Office, among others, to request investigative diligences and the initiation of a police inquiry, indicating the legal foundations of its procedural manifestations. Pursuant to  article 13, item II , it is incumbent upon the police authority to carry out the steps requested by the judge or the Public Prosecutor’s Office.

Laws of the Public Ministry and powers:  The Public Ministry is authorized, pursuant to  Complementary Law No. 75 , of May 20, 1993, Article 7, items and paragraphs thereof, and  Law No. 8625, of February 12, 1993, article 26 and its items, respectively, organic laws of the Federal and State Public Ministry, to request clarifications and documents from any authorities or employees. Can notify witnesses and cross-examine them. It may request information, exams, expertise and documents from direct or indirect public administration authorities (municipalities, government-controlled companies, public companies), request from the public administration temporary services of its servants and material means necessary to carry out specific activities, request information and documents to private entities, carry out inspections and investigative procedures, have access to public databases or those related to services of public relevance.

Apply to the judge or provide on your own:  As seen, the prosecutor has broad powers to take care in the search for evidence. It is discussed in the doctrine whether, considering such powers, the prosecutor can, instead of diligently seeking evidence, request it from the judge. It seems to us that the present device is clear: the promoter  must request them, directly, from any authorities or employees who must or can provide them. The CF did not uselessly grant requisitioning powers to the MP. Certainly, it was considered to unburden the judge’s table, leaving it to him to carry out the processes and judge. Especially at this stage of Article 47, in which the complaint was not even accepted by the judge, there is no reason to ask him to take steps. There is no reason for the magistrate to determine diligences in an investigation that did not even examine the feasibility of the criminal action. On the other hand, of course, in those measures where jurisdiction is reserved – data and telephone interception, breach of tax or bank secrecy, among others –, mandatory judicial intervention will be required.

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