Art. 207. Persons who, due to their role, ministry, trade or profession, must keep secrets are prohibited from deposing, unless they wish to give their testimony, released by the interested party.
Obligation to keep secrecy, professional secrecy and source secrecy
Obligation to keep secrecy: The obligation to keep secrecy may be based on law, statutes, regulations or even customs.
Violation of secrecy and the Penal Code: The CP protects secrecy in articles 154 and 325 , namely: Art. 154 – Revealing someone, without just cause, a secret, which they are aware of due to function, ministry, trade or profession, and whose disclosure could cause harm to others: Penalty – detention, from three months to one year, or fine. Art. 325 – Revealing a fact that you are aware of due to your position and that should remain secret, or facilitate the disclosure: Penalty – detention, from six months to two years, or a fine, if the fact does not constitute a more serious crime . An example of a role is that of a judge. Of ministry, priest. By trade, a painter, and by profession, a lawyer.
Confidentiality of the source and journalists: The wording of article 5, item XIV, of the CF : Access to information is guaranteed to all and the confidentiality of the source is safeguarded, when necessary for professional practice. As Minister Celso de Mello stated in an important decision, “No journalist may be forced to reveal the name of his informant or to indicate the source of his information, being certain, also, that he cannot suffer any sanction, direct or indirect, when refuse to break this professional secrecy and constitutional stature. In fact, this professional prerogative qualifies as an expressive guarantee of a legal order which, granted to any journalist as a result of his professional activity, is ultimately intended to make feasible, in favor of the community itself, the wide-ranging investigation of facts or events whose disclosure is imposed as a consequence dictated by reasons of strict public interest. The Brazilian constitutional order, therefore, prescribes that no journalist may be compelled to indicate the name of his informant or the source of his information. More than that, and as previously noted, this professional, when exercising the prerogative in question, cannot suffer any sanction motivated by his silence or his legitimate refusal to respond to inquiries that may be addressed to him with the aim of breaking confidentiality. from the source” (Minister Celso de Mello – STF – Ag. Reg. In Complaint 21.504 ).
Lawyers, deputies, senators, minor, prosecutor, delegate and curator
Lawyers: The lawyer’s right to refuse to testify is provided for in the Advocacy Statute ( Law n. 8.906/94 ), in article 7, item XIX: “The lawyer’s rights are: (…) XIX – refuse to testify as a witness in proceedings in which it worked or should work, or about a fact related to a person who is or was a lawyer, even when authorized or requested by the constituent, as well as about a fact that constitutes professional secrecy.”
Deputies and Senators: Article 53, paragraph 6, of the CF states : “Deputies and Senators shall not be obliged to testify about information received or given in connection with the exercise of their mandate, nor about the persons who entrusted or received information from them”.
Minor participant in the crime: May testify as an informant.
Prosecutor: You cannot testify in the process in which you are a party. If you acted in the inquiry, you cannot testify about facts verified there, since, also in this case, you acted as a party.
Police chief and police officers: They can testify, even if they have acted in the investigation.
Curator of the minor at the investigation stage: It was understood that he could testify. However, Guilherme de Souza Nucci, in comments on article 207, maintains, with his persistent lucidity, that the curator could not testify, since his function was to protect the rights of the curator, guide him and watch over his interests. It was common for the prosecution to enlist the curator as a witness with the aim of confirming the confession made at the investigation stage, which resulted in an unacceptable ethical and legal contradiction, that is, the one to whom the law assigned the onus of healing (caring) the interests of the minor, was the same one who, in the investigation, would testify to his detriment (Nucci, Guilherme de Souza. Code of Criminal Procedure Commented. 13th. Ed. National Editorial Group: 2014). The issue is currently outdated, as article 5 of the new CC established that minority ceases at eighteen (see the heading Device devoid of effect in annotations to article 262).
Curator of the inimputable: In any case, Nucci’s observations contained in the title Curator of the minor in the investigation phase are of great value , above, when applied to the healer of the unimputable. Pursuant to Article 207, persons who, by reason of their function, must keep secrecy are prohibited from deposing. The curator of the unimputable who accompanies the guardianship before the police authority is not obliged to testify in court. He will do so, if he so wishes, but never to the detriment of the guardianship, as, in that case, he would be failing to fulfill his duty to protect the interests of the minor. Referring to the curator, Nucci teaches “we believe he is prohibited from testifying due to his function. Etymologically, curator means the person whose task it is to look after someone’s interests, protecting them above all else. It is not possible, therefore, that the incapable person (indigenous or mentally handicapped), when he has a curator by his side, at the police station or in court, to be of use to him and, if necessary, Code of Criminal Procedure Commented . 13th. Ed. National Editorial Group: 2014).
Leonardo Isaac Yarochewsky: Defense does not belong only to the accused, it is in the public interest . Conjure When the inviolability of communications between lawyers and clients is disrespected, the ample defense is extinguished.