Art. 12 The police investigation will accompany the denouncement or complaint, whenever it serves as a basis for one or the other.
The inquiry and the complaint or complaint
The investigation no longer accompanies the complaint: According to article 3o-C, paragraph 3 , added by Law No. 13,964, of 2019 , the records that make up the matters of competence of the judge of guarantees will be safeguarded in the secretariat of that court, available to the Public Ministry and defense, and will not be attached to the case file sent to the investigating and trial judge, with the exception of documents relating to unrepeatable evidence, measures for obtaining evidence or anticipating evidence, which must be sent for attachment separately. Articles 3-A, 3-B, 3-C, 3-D, 3-E and 3-F are suspended sine die by injunction granted in ADIs 6,298, 6,299, 6,300 .
Dispensability of investigation: If there are elements of information that contain reasonable indications of the commission of a crime and the respective authorship, the Public Prosecutor’s Office is authorized, regardless of the request for the opening of a police investigation, to propose, from the outset, the criminal action. The police inquiry is perfectly dispensable. It is not only through the inquiry that news of a crime and elements of conviction reach the Public Prosecutor’s Office. They can arrive through representation ( article 39, paragraph 5th ), through the records, papers and documents forwarded by judges or courts ( article 40 ), or through the news of a crime by any of the people ( article 27 c/c 46, paragraph 1 ° ).
Indispensability of informative elements: However, it should be noted that the police inquiry may be waived if there are other elements of conviction to support the filing of the criminal action. It is not enough for the complaint, or even the complaint (which is also independent of the inquiry), to describe a typical fact and impute authorship to a specific person. The inaugural piece of the criminal action must be accompanied, under penalty of being rejected, by elements of conviction regarding the authorship and the imputed crime. The complaint cannot come out of nowhere. From pure imagination. Need support. Were it not so, it would be arbitration. The duty to bring a criminal action is conditioned to the existence of elements of conviction that authorize it.
The survey is not essential: See title The survey is not essential in comments on Article 4.
The Public Ministry in the investigation: See this same title in comments to Article 4.
Jurisprudence
Indispensability of evidentiary information: Generates illegal coercion of freedom when the fact described in the complaint is pure mental elaboration of the accuser. This mental creation occurs when someone is accused of criminal conduct in theory, but which is not the one, innocent in theory, verified in the investigation that served as its basis (TJRS – HC 683001671).
Dispensability of the inquiry: As a purely informative procedure, the police inquiry may be waived if the holder of the criminal action has sufficient elements to offer the complaint. (APN 33, STJ, Full Court, Rapporteur Min. Carlos Thibau, DJU 6.8.92, p. 8.594).
