Art. 145. Once the false document in the file has been accused in writing, the judge will observe the following procedure:
I – order the challenge to be filed separately, and then hear the opposing party, who, within 48 hours, will provide a response;
II – will sign a period of 3 days, successively, to each of the parties, to prove their allegations;
III – once the records are concluded, it may order the steps it deems necessary;
IV – if falsehood is recognized by an unappealable decision, he will order the document to be drawn out and sent, with the case records, to the Public Prosecution Service.
Documents, material and ideological falsehoods
Documents liable to be the object of an incident of falsehood: A document is a written piece of paper representing an act, fact or business. Documents are considered to be any writings, instruments or papers, public or private ( article 232 ). Only those documents capable of influencing the resolution of the dispute contained in the process, which will be made through the sentence, can be the object of an incident of falsehood. As Mougenot summarizes, only documents that may influence the outcome of the criminal action are liable to be accused of falsehood (Bonfim, Edilson Mougenout. Code of Criminal Procedure Annotated. 4th. ed. Editora Saraiva: 2012).
Material and ideological falsehoods: Falsehood can be material or ideological. Material falsehood occurs when someone imitates or alters a true public document or private document. Ideological falsehood is verified when someone changes the truth in a true public document or private document.
Incident of forgery. Document attached more than ten years ago. Preclusion: Appeal after judgment. There is no nullity in the decision that rejects the request for an incident of falsehood referring to the evidence added to the file for more than 10 years and against which the defense protests only after the passing of the condemnatory criminal sentence, since the claim is precluded (…) although there is no deadline defined by law for requesting the initiation of the incident of document falsity provided for in art. 145 et seq. of the Code of Criminal Procedure, the fact is that the official letter issued by the Federal Police that granted the said procedure, accompanied by the respective CD, was added to the case file more than ten years ago (…) the permission of the behavior under analysis would represent a violation the principles of legal certainty, reasonableness, procedural loyalty and objective good faith,STJ, RHC 79.834-RJ, Rapporteur Min. Felix Fischer, unanimously, judged on 11/07/2017, DJe 11/10/2017 – Newsletter 615 ).
Filing in a separate box, electronic documents and legitimacy
Obligation or not to report the incident separately: Once the document is false, it is up to the magistrate to decide whether to file the incident separately, or decide on the falsehood during the course of the procedural instruction. If the proof of falsehood is not complex, and its investigation is not capable of jeopardizing the regular progress of the main proceedings, there is no justification for a separate assessment.
Presumption of originality of electronic documents: Pursuant to article 11 and its paragraphs of Law n. 11,419/2006, which provides for the computerization of the judicial process, documents produced electronically and attached to electronic processes with a guarantee of origin and their signatory are considered original. The digital extracts and documents digitized and attached to the file by the Justice bodies and their assistants, by the Public Prosecutor’s Office and its assistants, by the attorney’s offices, by the police authorities, by public departments in general and by public and private lawyers have the same probative value as the originals, except for the reasoned and substantiated allegation of tampering before or during the digitization process. The allegation of falsity of the original document will be processed electronically in accordance with the procedural law. The originals of the digitized documents must be preserved by their holder until the final judgment is passed or, when admitted, until the end of the period for filing a rescission action, in the case of civil proceedings. In the case of criminal proceedings, the law does not mention anything. We believe that they should be kept until the penalty is extinguished.
Legitimacy to argue: The legitimacy to argue the incident of falsehood lies with the Public Prosecutor’s Office, the assistant to the prosecution, the accused, the plaintiff and the defendant. The judge may determine ex officio the verification of the falsity of the document.
Non-suspension of the main proceedings and timeliness of the claim
Non-suspension of the main process: The incident of falsehood does not suspend the progress of the main process. If the determination of falsehood is essential for the solution of the criminal action, it cannot be decided until the incident is resolved.
Timeliness of the claim: It is a matter of public order to recognize whether a given document capable of influencing the outcome of the criminal action is false or not, since the real truth is unavailable. As a result, there is no preclusion for the claim of falsehood. For this reason, those who maintain that falsehood cannot be argued before the Courts are wrong. Furthermore, the consideration that documents can be attached to the file at any time ( article 231 ).
Production of evidence, conflict between accused and appropriate appeal
Production of evidence: The parties have a period of three days to offer the evidence they have and request the ones they wish to produce (interview of witnesses, expertise, etc.). Graph technical expertise, for example, aims to determine authorship of who wrote a certain text. According to José Ricardo Rocha, President of the National Council of Judicial Experts, “among the laws governing graphoscopy we can mention the law prepared by the great French expert Solange Pellat, which says: ‘The graphic gesture is under the immediate influence of the brain. Its form is not modified by the writing organ if it functions normally and is sufficiently adapted to its function.’ That is, all our graphic launches come from our brain and are executed by us unconsciously, leaving our members only to interpret the cerebral orders, and by this Law, even if the writer loses one of his limbs, he will manage, after some training, to accomplish the same graphic gesture that he performed with his main member. The greatest example of this fact is that of painters who, after suffering an accident and having their hands paralyzed, start to paint with their feet or even their mouths. The Graphic Gesture thus becomes a unique creation that cannot be counterfeited, without the appearance of marks and evidence of attempted Fraud in the forgery and the inclusion of characteristics specific to the forger and not to the holder of the graphic gesture” (José Ricardo Rocha Bandeira – The graphotechnical expertise in the Brazilian courts – Legal Scope ).++
Conflict between the accused in the incident of falsehood: According to Mougenot, in comments to the present device, the conflict, in the incident of falsehood, does not always occur between the prosecution and the defense, it can be between the accused, when two defenses are conflicting and the falsehood of the document favoring one and harming the other (Bonfim, Edilson Mougenout. Code of Criminal Procedure Annotated. 4th. ed. Editora Saraiva: 2012).
Appropriate appeal: The present article 145, in its item IV, says that, if falsehood is recognized by an unappealable decision , the judge will order the document to be removed and sent, together with the case records, to the Public Prosecutor’s Office. An unappealable decision inserted in the provisions means that after all the remedies have been exhausted, it does not mean that the decision that resolves the incident of falsehood cannot be appealed. The appropriate appeal against the decision that upholds or unfounded the incident is the appeal in the strict sense, in accordance with what is expressly provided for in item XVIII of article 581 .
No assessment and appeal and forwarding to the Public Prosecutor’s Office
Failure to file a separate filing and appropriate appeals: In view of the magistrate’s refusal to file a separate filing, any appeal is irrelevant, as there is no harm to the parties, inasmuch as, once the allegation of falsehood has been raised, it will be timely decided. Decided, even if the verdict is issued in the main proceedings, and not in separate records (in incidental proceedings), the party may file an appeal in the strict sense, which will be raised by instrument, and the party will indicate the parts of the records that it intends to transfer ( article 587 ).
Forwarding to the Public Prosecutor’s Office: Once the false documents are recognized, the magistrate will have the document removed and sent to the Public Prosecutor’s Office. By the way, article 40 of the CPP determines that, when, in records or papers known to them, judges or courts verify the existence of a public action crime, they will send to the Public Ministry the copies and documents necessary to file the complaint. Article 15 of the Law of Introduction to the CPP prescribes that the document recognized as false will be initialed by the judge and the clerk on each of its pages before being removed from the file.