Art. 16. The Public Prosecutor’s Office cannot request the return of the investigation to the police authority, except for new steps, essential for the filing of the complaint.
Return of documents to the police
Comments: The Public Prosecution Service cannot request the return of the investigation files to the police authority, unless new steps are necessary, essential for the filing of the complaint. Once the inquiry has been received by the MP, if there is sufficient evidence in it, the complaint must be offered. Missing steps may be requested with the complaint itself, in a separate petition or directly to the police upon request ( article 13, II , 47 and article 26, item IV of Law n. 8.625/93). The judge cannot deny the request for return made by the Public Prosecutor’s Office, since, as an active subject with the right of action, he is the one who is best authorized to say whether there are already enough elements to offer the complaint. As the accused was held in pre-trial detention, the request for the return of the investigation files to the police demonstrates the illegality of the arrest. If there are not enough elements for the complaint, there are certainly not enough elements for enacting the preventive measure. On the subject, see the subheading Indicted in preventive custody under the heading Counting the deadlines , in comments on article 10. The request to return the investigation to the police authority can be made more than once.
Dismissal by the judge: A partial correction or a writ of mandamus may be applied against the rejection of the return of the investigation records to the police authority.
Released. Successive returns and disindictment: Once the accused is released, the return of the records to the police authority for new steps may be requested more than once. However, if there are successive returns, without offering the complaint, the disindictment is due. See subheading Indicted released. Successive devolutions and disindictment in the title Return of the inquiry for new diligences , in comments to article 10.
The MP assisting in the investigation: The MP can participate in the police investigation by assisting the chief of police and, according to STJ Precedent 234 , “the participation of a member of the Public Ministry in the criminal investigation phase does not entail his/her impediment or suspicion for offering the complaint” .
Requests and the obligation or otherwise of the police authority to comply with them: On this topic, see the title Requests from the judicial, ministerial and police authorities are to be fulfilled in comments to Article 4 .
Jurisprudence
The investigated party’s pretense of expressing a prior opinion on the MP’s request is unavoidable: The fact that the investigations of the inquiry are not carried out in adversary proceedings does not prejudice the exercise of full defense ( Inq 3.387 AgR, rel. min. Dias Toffoli, judgment on 15 -12-2015, judgment published in the DJE of 26-2-2016 – Bulletin 812, Second Panel).
