Art. 20. The authority will ensure in the investigation the secrecy necessary to elucidate the fact or required by the interest of society.
Single paragraph. In the background certificates that are requested, the police authority cannot mention any notes referring to the initiation of an investigation against the applicants. (Wording provided by Law No. 12,681, of 2012)
Secrecy
It does not extend to the lawyer: The authority should, and may (right-duty), determine the secrecy of the investigation when such measure is necessary to elucidate the facts or when it is in the interest of society. This secrecy is not mandatory for all cases. There are hypotheses in which publicity is convenient insofar as any person in the population can come to contribute to the investigations, providing information of which they are aware. The secrecy of the investigation does not reach the lawyer, because according to article 7, paragraph XIV of Law n. 8,906/1994, he has the right to examine, in any institution responsible for conducting an investigation, even without a power of attorney, records of the act and investigations of any nature, completed or in progress, even if concluded by the authority, being able to copy parts and take notes, amid physical or digital. Binding Precedent 14 of the STF follows : It is the right of the defender, in the interests of the defendant, to have broad access to the evidence that, already documented in an investigative procedure carried out by a body with judicial police competence, concerns the exercise of the right of defense (see jurisprudence subsequent to the publication of the Precedent ).
Diligences that are in progress and secrecy: Investigative diligences in progress, such as telephone interception, are covered by secrecy, including for the lawyer.
Refusal to examine the records and judicial measures: Against the refusal to examine the records, the lawyer may file a complaint (to enforce Binding Precedent 14 of the STF ), habeas corpus or a writ of mandamus.
Confidentiality in favor of the investigated person and abuse of authority: 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. Submitting a mere suspect to public execration constitutes a crime of violation of functional secrecy ( CP, art. 325, caput ). 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.
Defender’s right to monitor the investigation: Pursuant to article 7, item XXI of Law n. 8.906/1994 (Statute of the OAB), it is the right of the lawyer to assist his clients during the investigation of infractions, under penalty of absolute nullity of the respective interrogation or testimony and, subsequently, of all investigative and probative elements arising or derived therefrom, directly or indirectly, and may even, in the course of the respective investigation: a) present reasons and questions (…) .
Crime of abuse of authority against the lawyer: According to article 7, paragraph 12 of Law n. 8.906/1994 , non-compliance with the rights established in item XIV (right to examine records), the incomplete supply of records or the supply of records in which parts already included in the investigative notebook were withdrawn will imply criminal and functional liability for abuse of authority of the person in charge that prevents the access of the lawyer with the intention of jeopardizing the exercise of the defence, without prejudice to the subjective right of the lawyer to request access to the file to the competent judge.
Follow-up by the Public Defender: The Public Defender’s Office has institutional functions to “ follow a police investigation ”, including the immediate communication of the arrest in flagrante delicto by the police authority, when the prisoner does not appoint a lawyer ( article 4, item XIV of Complementary Law n. 80 /1994 ). See comments to article 306. The prerogatives of the members of the Federal Public Defender’s Office are to examine, in any public office, records of flagrante delicto, inquiries and processes, ensuring that copies are obtained and being able to take notes (article 44, item VIII of Complementary Law n. 80/1994 ).
Immunity and lawyer’s rights: See comments to Article 261 .
Lawyer’s arrest: See comments to Article 261 .
Public Defender’s Office: See comments to Article 261 .
Constituted defender: See comments to Article 261 .
Public Prosecutor’s Office: It is the attribution of members of the Public Prosecutor’s Office to monitor investigative acts with police agencies, when they deem it convenient to investigate criminal offenses, or if designated by the Attorney General (Article 15 of Complementary Law n. 40/1981 – LOMN ).
Running sheet or background check: In the background checks that are requested, the police authority cannot mention any notes referring to the initiation of an investigation against the applicants. Pursuant to article 202 of Law no. 7.210/1984 (Criminal Execution Law), once the sentence has been fulfilled or extinguished, any news or reference to the conviction will not appear on the record sheet, certificates or certificates provided by the police authority or by Justice assistants, except to instruct the process for the practice of a new criminal offense or other cases expressed by law.
Doctrine
Artur Barros Freitas Osti. Telephone interception of dialogue between lawyer and client is illegal . advocacymarizdeoliveira.com.br.
Iverson Kech Ferreira: The breach of secrecy in the police investigation and the theory of tagging . Higher School of Police.
Jader Marques: There is still a stir about access to the police investigation today . Emporium of law. Emporium of law.
Rogerio Schietti Cruz: Advertising and Confidentiality in Modern Criminal Procedure . metajus
Rômulo de Andrade Moreira: Lawyers and secrecy in the preliminary investigation . Legal Content.
Renata Mariz de Oliveira: Violation of the prerogatives of the criminal lawyer nowadays . advocacymarizdeoliveira.com.br.
Ruchester Marreiros Barbosa: The criminal investigation of guarantees, secrecy and the investigated person’s right to information . jus.com.br.
Valdinei Cordeiro Coimbra: The certificates or attestations of criminal records issued by the Police and Courts and the amendment of the sole paragraph of art. 20 of CP . Legal Content.
Jurisprudence
Informing the press about meetings under investigation that are subject to a controlled investigation, as well as alerting them to the date of compliance with search and seizure warrants, constitutes a crime of breach of functional secrecy: Informing journalists about an alleged meeting to be held between third parties – that are investigated in a given police operation –, in which “controlled police action” would occur, constitutes a breach of functional secrecy (CP, art. 325, caput ). In the same sense, it characterizes a crime of violation of functional secrecy, in the qualified form (CP, art. 325, § 2º), to alert journalists about the date of execution of search and seizure warrants ( AP 563/SP, rel. min. Teori Zavascki, judged on 21-10-2014, judgment published in the DJE of 28-11-2014 – Newsletter 764, Second Panel).
End
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