Art. 257. It is incumbent upon the Public Prosecutor’s Office to: (Wording provided by Law No. 11,719, of 2008).
I – promote, privately, public criminal action, in the manner established in this Code; and (Included by Law No. 11,719 of 2008).
II – supervise the execution of the law. (Included by Law No. 11,719 of 2008).
Fundamental importance institution
Responsibility for the legal order and democracy: The functions and importance of the Public Ministry are high. It is a permanent institution, essential to the jurisdictional function of the State, incumbent upon it to defend the legal order, the democratic regime and unavailable social and individual interests (article 127 of the CF ).
Constitutional mission and warning: When the constituent commissioned the Public Prosecutor’s Office to defend order and the democratic regime, it not only conferred a mission, but also issued a warning. A warning for the Public Ministry to refrain from deviating from legality to the detriment of democracy and the independence of the Powers. The Public Prosecutor’s Office, like the police, is part of the system of repression, also because it is, in some crimes, authorized to investigate. Repressive power is strong and can be used both to maintain legality and to dissolve it. The course of history demonstrates that investigation and criminal prosecution can serve as instruments for the implementation of authoritarian regimes. Organ and institutions responsible for repression are endowed with a significant portion of state power. They need to be controlled both externally and internally. The greater the power, the more dangerous the abuse (Edmund Burke). The constitutional warning is addressed to the institution, which must, through its regulatory bodies, remain attentive to possible deviations by its members. In omission, all its members become responsible for the consequences.
Doctrine
José Joaquim Canotilho: “Problems are in the streets, not in the Constitution”. Interview by Alessandro Cristo and Márcio Chaer.Conjure
Jurisprudence
Deadline for MP appeals in criminal matters: In criminal matters, the Public Ministry does not enjoy the prerogative of counting the appeal deadlines twice ( AgRg no EREsp 1.187.916-SP, Reporting Min. Regina Helena Costa, judged on 11/27 /2013 – Bulletin nº 533 ).
Institutional norms
Institutional principles: The Public Ministry’s institutional principles are unity, indivisibility and functional independence ( article 127, paragraph 1, of the CF ). Unity means that all members of the MP are part of the same institution. Due to indivisibility, the party of the process is the Public Prosecutor’s Office, not the prosecutor who is acting, and, thus, can be replaced. As for independence, it means that there is no hierarchy in the MP institution. Each promoter acts according to his conscience.
Doctrine
Guilherme Nucci: Bad Faith in Criminal Procedure in Harmony with the New CPC . William Nucci
Scope of MP
Scope of the MP: The Public Prosecutor’s Office comprises: I – the Federal Public Prosecutor’s Office, which includes: a) the Federal Public Prosecutor’s Office; b) the Labor Public Prosecutor’s Office; c) the Military Public Ministry; d) the Public Ministry of the Federal District and Territories; II – the Public Ministries of the States ( article 128 of the CF). The Attorney General of the Republic is the head of the Federal Public Ministry. The Deputy Attorneys General of the Republic act before the Superior Courts. The Regional Attorneys of the Republic exercise their functions before the Federal Regional Courts and are headed by the Chief Attorney of the Regional Attorney of the Republic of the Region. In 1st instance, the Public Prosecutors act, whose leadership is exercised by the Chief Prosecutor of the Public Prosecutor’s Office in the State. The State Public Prosecutor’s Office is headed by the State Attorney General. Before the State Courts, the State MP is represented by the Public Prosecutors. The Public Prosecutors act before the judges of 1st instance. The meaning of Boss within the MP is relative. Given its functional independence,
District Attorney. Expression valid for members of the MPU and for the MPE: How can a member of the Public Prosecutor’s Office be named in a single word in a way that applies both to those who belong to the Public Prosecution Service of the Union and to those who are part of the Public Prosecution Service of the State? Accuser? Perfectly valid, since the process is accusatory, contradictory and the MP is a party. However, it is not a completely adequate expression, as the MP’s activity is not limited to accusing. It’s more than that. It is to start. Start up. Boost. Is to promote . The CF, in article 129, lists the institutional functions of the Public Ministry. In no less than three of them, he uses the expression to promote : to promote , privately, public criminal action, in accordance with the law;promote civil inquiry and public civil action; promote the action of unconstitutionality or representation for the purposes of intervention by the Union and the States. The term promoter r means one who gives impetus to something, who encourages, who promotes. Well, if the promoter is a promoter, there is nothing more valid than adopting the expression prosecutor both for Public Prosecutors, and other members of the MPU who work in the criminal area (electoral and military), and for Public Prosecutors, when intending to refer to all of them with just one term . It is the expression we adopt. In this way, the difficulty in finding an expression that covers both members of the Public Ministry, the State and the Federal, is solved. An expression that was reserved only to name the members of the State MP, we understand to also apply to the members of the Union MP. Both promote criminal action. Both are “promoters”. One is the Public Prosecutor. Another, Prosecutor.
Jurisprudence
Conflict of attributions between MPE and MPF : The Supreme Court is responsible for resolving conflict of attributions involving the Federal Public Ministry and the State Public Ministry ( Minister Marco Aurélio – STF – Pet 3528 ).
Attribution of the Attorney General of the Republic. Crime committed by a member of a Military Court of Justice: It is the responsibility of the Attorney General of the Republic to act in cases related to the investigation of a crime committed by a member of a Military Court of Justice created in the State of Rio Grande do Sul (ACO 1664 AgR and ACO 1516 AgR , rel. Min. Ricardo Lewandowski, judgment on 7 and 8-10-2015, judgments published in the DJE of 18-12-2015 – Newsletter 802, Plenary).
The increase in entrance of the comarca does not authorize the removal of the prosecutor: The prosecutor cannot be removed from his capacity just because the comarca has been raised in entrance ( MS 27.744, rel. min. Luiz Fux, judgment on 14- 4-2015, ruling published in the DJE of 6-8-2015 – Bulletin 781, First Panel).
Oral argument in the tribune of the Federal Supreme Court by the Public Ministry of the States. Possibility: The Public Prosecutor’s Office of the Member States is assured the prerogative of promoting oral support in the tribune of the Federal Supreme Court (STF) ( RE 593.727, rel. orig. min. Cezar Peluso, rel. p/ o ac. min. Gilmar Mendes , judgment on 14-5-2015, judgment published in the DJE of 8-9-2015 – Newsletter 785, General Repercussion).
Appointment of a member of the State Public Prosecutor’s Office to exercise the function of electoral promoter: The appointment of a member of the State Public Prosecutor’s Office to exercise the function of electoral promoter by a regional electoral prosecutor, which is member of the Federal Public Ministry ( ADI 3.802, rel. Dias Toffoli, judgment on 3/10/2016, DJE of 11/14/2016 – Newsletter 817, Plenary).
Conflicts of attributions between members of the Federal Public Ministry: It is incumbent upon the Attorney General of the Republic (PGR), as a national body of the Public Ministry, to settle conflicts of attributions between members of the Federal Public Ministry (MPF) and the State Public Ministry ( ACO 924, rel. Luiz Fux, judgment on 5/19/2016, DJE of 9/26/2016 – Newsletter 826, Plenary).
It is incumbent upon the Attorney General of the Republic to assess conflicts of attribution between bodies of the MP: It is up to the Attorney General of the Republic to assess conflicts of attribution between bodies of the Public Ministry ( ACO 1.567 QO rel. min. Dias Toffoli Plenary DJE of 1st- 8-2017 Informative STF 835 ).
Public ministry. The law that determines the referendum by the reviewing body of conclusion regarding the attribution is admitted: The law that determines the referendum, by the competent reviewing body, of the decision of a member of the Public Ministry that concludes, after the initiation of the civil inquiry or of the respective preparatory procedure, whether this or that is assigned to another branch of the Public Ministry ( ADI 5.434, rel. p/ o ac. min. Edson Fachin, DJE of 9-23-2019
Warranties and prohibitions
Guarantees: The Public Prosecutor’s Office has the following guarantees ( article 128, paragraph 5, item I of the CF ): a) lifetime, after two years in office, not being able to lose office except by a final court decision; b) irremovability, except for reasons of public interest, by decision of the competent collegiate body of the Public Ministry, by the vote of the absolute majority of its members, full defense being ensured ( Wording given by Constitutional Amendment No. 45, of 2004) ; c) irreducibility of subsidy, established in the form of article 39, paragraph 4, and subject to the provisions of articles 37, X and XI, 150, II, 153, III, 153, paragraph 2, I (Wording provided by Constitutional Amendment No. 19, of 1998 ) .
Prohibitions: The MP is subject to the following prohibitions (article 128, paragraph 5, item II of the CF ): a) receive, in any capacity and under any pretext, fees, percentages or procedural costs; b) practice law; c) participate in a commercial company, as provided by law; d) exercising, even if on availability, any other public function, except one of teaching; e) carry out political-partisan activity (Wording given by Constitutional Amendment No. 45, of 2004) ; f) receive, for any reason or reason, aid or contributions from individuals, public or private entities, subject to the exceptions provided for by law (Included by Constitutional Amendment No. 45 of 2004) .
Investigation against a member of the Public Ministry: When, during the course of the investigation, there is evidence of a criminal offense committed by a member of the Public Ministry, the police, civil or military authority will immediately send the respective records to the Attorney General of Justice, or Attorney General of the Republic, who will be responsible for proceeding with the investigation (article 41, sole paragraph of Law n. 8.625/1993).
Doctrine
Alexandre de Moraes: Guarantees of the Public Ministry in defense of society . amprs.com.br.
Flavio Meirelles Medeiros: The Operator of Law, Justice and the Crowd . Jusbrasil.
Candido Furtado Maia Neto. Prosecutor or Prosecutor? Human Rights and the Democratic Public Ministry in Brazil . Anadep.
Cleide Pereira da Silva : The public ministry in the democratic state of law . repository.ul.pt. 2017.
Fernando Augusto Fernandes: Far from being diminished or extirpated, the fifth constitutional must be celebrated . Conjure
Gisela Gondin Ramos: The early burial of the CNJ . The constitutionalists.
Gustave LeBon. Crowd psychology. Delraux.
Lenio Streck: “Abandoning one’s will to judge is the cost of democracy”. Interview . Conjure
Luiz Flávio Borges D’Urso: In defense of the constitutional fifth . duraso.com.br.
Patrícia Falcão Gandra : Countermajoritarian principle and separation of powers in the defense and promotion of fundamental rights . repository.ul.pt. 2017
Jurisprudence
Procedure for declaring the loss of life as a member of the State Public Prosecutor’s Office: In criminal proceedings arising from the practice of passive corruption practiced by a lifelong member of the State Public Ministry, it is not possible to determine the loss of the position based on art. 92, I, a, of the CP ( REsp 1.251.621-AM, Reporting Min. Laurita Vaz, judged on 10/16/2014 – Newsletter No. 552).
The CNMP cannot carry out abstract constitutionality control: The National Council of the Public Ministry (CNMP) cannot carry out abstract constitutionality control ( MS 27.744, rel. min. Luiz Fux, judgment on 4-14-2015, judgment published in the DJE of 6-8-2015 – Bulletin 781, First Panel).
Members of the Public Prosecutor’s Office and prohibition against holding public office: Members of the Public Prosecutor’s Office cannot hold public office outside the scope of the institution, except as a professor and teaching position. Article 129, IX, of CF7 concerns the functions of the Public Ministry institution, not its members. The ban on exercising another public function is in effect “even if available” (ADPF 388, rel. Min. Gilmar Mendes, judgment on 3/9/2016, DJE of 8/1/2016 – Newsletter 817, Plenary).
Competence to prosecute and judge members of the MPU: Members of the Public Ministry of the Union (MPU) must be prosecuted and judged in the court before which they acted at the time of the facts ( Pet 7.063, rel. p/ o ac. min. Ricardo Lewandowski, DJE of 6-2-2018 ).
Institutional Functions
Institutional Functions: Among others, the MP’s institutional functions ( article 129 of the CF ): promote, privately, public criminal action, in accordance with the law; promote civil inquiry and public civil action, for the protection of public and social property, the environment and other diffuse and collective interests; issue notifications in administrative procedures within its competence, requesting information and documents to instruct them, in the form of the respective complementary law; request investigative diligences and the initiation of a police inquiry, indicating the legal grounds for their procedural manifestations.
National Organic Law on the Public Ministry: The National Organic Law on the Public Ministry is Law n. 8,625, of February 12, 1993 , which provides for general rules for the organization of the Public Ministry of the States.
Statute of the Federal Public Prosecutor’s Office: Complementary Law n . 75, of May 20, 1993 , which provides for the organization and attributions of the Federal Public Ministry.
Doctrine
André Turella Carpinelli : Hate speech and freedom of expression: permission, prohibition and criminalization in the current Western socio-political scenario . Law School. University of Lisbon
Felipe Luchete: Council changes rule that allowed the Public Prosecution Service to forgive those who confess . Conjure
Glaucia Maria Pontes Mouzinho: About the guilty and the innocent: the process of crimination and incrimination by the Brazilian federal public ministry . app.uff.br .
Hugo Nigro Mazzilli: The nature of the functions of the Public Ministry and its position in the criminal process mazzilli.com.br.
Ludmila Mendonça Lopes Ribeiro : Public Ministry: Old institution with new functions? Critical Journal of Social Sciences.
Raúl Zaffaroni, Argentine jurist: “The function of criminal law is to limit punitive power”. Interview by Marina Ito. Conjure
Rodrigo Mariano Torquato Maia : Limits and affectations to freedom of expression in Brazil and in Constitutional Portugal. repository.ul.pt. 2017.
Rômulo de Andrade Moreira : Prosecutors cannot contribute to the unjust conviction of someone . Conjure
Romulo de Andrade Moreira. The role of the MP in the adversarial system – A view from the Chilean experience . Jusbrasil.
Jurisprudence
Public ministry. The law that determines the referendum by the reviewing body of conclusion regarding the attribution is admitted: The law that determines the referendum, by the competent reviewing body, of the decision of a member of the Public Ministry that concludes, after the initiation of the civil inquiry or of the respective preparatory procedure, whether this or that is assigned to another branch of the Public Prosecution Service ( ADI 5.434, rel. p/ o ac. min. Edson Fachin, DJE of 23-9-2019 ).
Nullity due to lack of intervention
Criminal action and nullity due to lack of intervention: In crimes subject to public action, criminal action is promoted by the Public Prosecutor’s Office ( article 24 ). The nullity of the criminal procedure is verified due to the lack of intervention by the Public Prosecutor’s Office in all terms of the action brought by him and in those brought by the offended party, in the case of a crime of public action. See the heading Intervention by the Public Prosecutor’s Office in comments on Article 564.
Doctrine
Ígor Araújo de Arruda: Hearing of criminal instruction without a prosecution body and the “impartial protagonism ”. Anadep.
Jurisprudence
Prosecutor’s absence from hearing. Defense silence on the fact. Preclusion: The fact that, in an instruction hearing, the magistrate, after registering the absence of the representative of the MP (who, even summoned, did not appear), complements the questioning of the witnesses carried out by the defense, without the Defender has protested at the opportune moment or shown effective prejudice ( REsp 1.348.978-SC, Reporting Judge Rogerio Schietti Cruz, Reporting Judge for judgment Justice Nefi Cordeiro, judged on 12/17/2015, DJe 2/17/2016 – Newsletter n. 577 ). There are decisions to the contrary: REsp n. 1,259,482/RS .
Jurisprudence
Prosecutor who no longer exercised his functions : The complaint filed by a prosecutor who no longer exercised his functions in the Court is void (RJTJRS 84/28).
Initial term of the period for the MP to appeal: When the Public Prosecutor’s Office is summoned personally in a notary, giving notice in the records, its appeal period will start on that date, and not on the day the records are sent to its administrative department (EREsp 1.347.303 -GO, Reporting Minister Gurgel de Faria, judged on 12/10/2014, DJe 12/17/2014 – Newsletter 554 ).
Theme 959. Repetitive. Counting of deadlines for the Public Prosecutor’s Office: Need to send the records to the institution. For the Public Prosecutor’s Office, the initial term for counting the period to challenge a judicial decision is the date of delivery of the records to the administrative division of the body, it being irrelevant whether the personal subpoena was given at a hearing, at a notary’s office or by warrant ( REsp 1.349 935-SE, Reporting Justice Rogério Schietti Cruz, Third Section, by majority, judged on 8/23/2017, DJe 9/14/2017. Item 959. Newsletter 611 ).
Waiver of action
Prohibition of withdrawal and request for acquittal. Appeal in favor of the defendant: The public prosecutor cannot withdraw from the criminal action ( article 42 ), which does not prevent him from asking for the acquittal of the accused. He can even appeal in favor of the defendant.
Of the interest represented by the MP
The interest represented by the MP in criminal proceedings: Is there a conflict of interest in criminal proceedings? Carnelutti defines litigation as a conflict of interests qualified by the claim of one of the interested parties and the resistance of the other. He maintains that the concept of litigation is applicable to both criminal and civil proceedings. In our view, there is criminal litigation, but there is no conflict of interest in criminal proceedings and, therefore, we define litigation in a different way. The social interest is justice. This greater interest is combined with two: the interest that the guilty be punished and the interest that the innocent be acquitted. Society is interested in punishing the guilty because it is believed that, if crimes do not go unpunished, there will be a decrease in criminality due to the preventive effects of the penalty. The social body has an interest in the absolution of the innocent, because only then can there be security and tranquility. The honest man would not have the necessary tranquility to live socially if, at any moment, the sword of justice could trip over his neck. In criminal proceedings, it is incumbent upon the prosecution to ensure the social interest in punishing the culprits. To the defense, the task of protecting the social interest of acquitting the innocent. They are interests of society (or of the State, it doesn’t matter). As these two interests are not opposed, on the contrary, they complement each other, there can be no conflict of interests. The ultimate interest of both the prosecution and the defense is one and the same: that justice be done. But, if the defense has to watch over the interest of acquitting the innocent, how can it be explained that on numerous occasions, in the process, it pleads for the acquittal of the guilty? There are no culprits. Not innocent. The truth is beyond the reach of human knowledge, science and process. The confessed defendant, whether in court or in secrecy for the defender, can always be distorting the truth. Self-accusation is no stranger to forensic life. The value of confession is relative, its falsity being the subject of study by some writers who have found different reasons for it. No matter how plentiful and suitable the evidence of guilt may be, there is always a possibility of innocence. Even if it is minimal, the defender, supporting it (if in the concrete case that is the best strategy), will be acting as a supervisor of the social interest of acquitting the innocent. There is no place in criminal procedure for conflict of interest. However, the same cannot be said for the unsatisfied claim. The following statement is uncontroversial: either the accused is guilty or he is innocent. If guilty, there is in the process the State’s right to punish and the accused’s substantial obligation to submit to the penalty, that is to say, there is in the process the state punitive claim that is unsatisfied because the accused, due to the process, opposes it . If the accused is innocent, he has the substantial right to freedom and the State has the obligation to guarantee it to its fullest extent. The claim of the innocent accused is unsatisfied because, even responding freely to the process, his right to come and go is, more or less, restricted. The substantial freedom to which he is entitled is not being granted in all due fullness. Litigation, for Carnelutti, is essential to the process. The well-known jurist says that litigation is present in the process like an illness in the cure. But the two are not confused – he continues –, Litigation is not a process, but is in the process. The process lends itself to solving it. Between lawsuit and litigation mediate the same relationship as between continent and content (CARNELUTTI, Francisco. Sistema de derecho civil procedural law . Buenos Aires, Uteha, 1944. v. II, p. 3). What is Litigation? Calamandrei notes that among scholars the meaning of this word is imprecise and multiple ( apud CARNELUTTI, Francisco – Estudios de derecho procesal. Buenos Aires, Legal Europe-America, 1952. v. I, p. 44.). The unsatisfied claim contained in the process, whether its holder is the State or the citizen, gives rise to the procedural debate. To use broader terms, it gives rise to procedural discussion or controversy. Prosecution and defense, each in their own way, interpret the evidence and suggest to the judge the norms to be applied. Criminal litigation is, therefore, the procedural controversy established as a result of the dissatisfaction of the substantive criminal claim. Unsatisfied claim that it is either the accused or the State. However, it should be noted that when we maintain that there are no conflicts of interest in criminal proceedings, we are referring to legal and objective interests, not “subjective” ones. The subjective interests in the process are circumstantial, variable. The interest of the accused, even guilty, naturally and almost always, is freedom. The defender, even if he does not believe in innocence, may subjectively have an interest in the accused being acquitted. It may also happen that the representative of the Public Prosecutor’s Office wants the conviction. Society itself can be subject to “subjective” interests. A community traumatized by the crime, or by its media spectacle, cannot have any other interest than that aimed at convicting mere suspects and accused without any proven guilt. These subjective conflicts of interest are occasional and may or may not be present in the process. It is because they are human, occasional, variable, that they have no legal relevance. Their relevance does not cross the limits of Judicial Psychology. Therefore, in strictly legal and technical terms, there can be no conflict of interest. The conflict between the accuser’s interest in the accused’s arrest and the latter’s interest in his own freedom is occasional and devoid of legal relevance. It doesn’t matter to the law.
Part or fiscal of the law?
Public ministry. Part or fiscal of the law? It has been discussed for a long time in the doctrine whether the Public Prosecutor’s Office, in criminal proceedings, is a party or inspector of the law. The assertion that the MP is responsible for the law is unsustainable. Who is a party to the lawsuit? It is part of those who participate in it interestedly, that is, with interest, regardless of whether the interest is their own or a third party. Yes, those who represent third parties too, although this is not the doctrinal understanding, are parties, as they act in the process with interest and, therefore, with partiality. Interest conceives partiality, which is inherent in the concept of part. The third party interest representative acts in the process in the interest of the third party he represents. He has a (legally protected) interest in representing an interest. Part and partiality are words with the same Latin origin. Partiality is a manifestation of interest. It is not just the defendant who has an interest in the process. Your defender does too. Furthermore, legally protected interests, which are different from those relating to the right of defense. Taking for example the curator of the unimputable. He, in addition to being unimputable, is also a party, as he has an interest in representing the interests of the unimputable. It will work partially. The right to be present in all procedural acts accompanying the represented is a procedural right of his own, of the curator. Now, right is the legally protected interest. The defender (representative of the party) is subjectively and objectively interested in the cause. In criminal proceedings, it is up to the prosecution to ensure the social interest (or the State’s interest, it doesn’t matter) in punishing the guilty, and the defense to protect the social interest (or the State’s interest) to acquit the innocent. legal costs , since, representing interest, it is not impartial. If it were impartial, it would not be a party. If it were impartial, the judge would be dispensable. Impartial is the judge. The attribution of being impartial belongs to the judge, not to the Public Prosecutor’s Office, and this body cannot usurp the jurisdictional function. The MP is not, cannot, and should not be impartial. Otherwise, there would not be the indispensable contradictory in criminal proceedings. In criminal proceedings, criminal proceedings are based on doubt, based on sufficient evidence, regarding the legal relationship that binds the State to the accused, if it is that legal relationship in which the State has the right to punish (if the accused is guilty – passive subject of the material relationship), or if it is that other in which the accused has the right to freedom (if the accused is innocent – active subject of the relationship). If there is this doubt, it is common ground, and it is part of the procedural order, the Public Prosecutor’s Office must accuse. In the face of doubtful evidence (doubt only exists when sufficient evidence of crime and authorship is present), he must denounce. When in doubt, he should carry out the criminal prosecution. The public prosecutor would only be impartial if, in the face of doubt, he was obliged to ask for acquittal, or to appeal in favor of the condemned person, and, as is known, he is not obliged. Exceptionally, when the evidence, with a good degree of certainty, indicates the innocence of the accused, the MP can ask for acquittal. He may even, in this case, appeal in favor of the accused, seeking recognition of his innocence. But these faculties are not sufficient reasons to consider the Public Prosecutor’s Office as an inspector of the law, but rather derive from the fact that no one can be forced to litigate in violation of their own conscience. To all this could be added the psychic aspect. The MP accuses very often (in his day-to-day life) and, in order to accuse, it is necessary to reason in an investigative way (it is necessary to start from the hypothesis of the accused’s guilt), and it is known that this way of reasoning ends up conditioning the judgment, which makes it very difficult for the prosecutor, even if he wants to, to form convictions free of bias (a similar condition applies to the defender). It is precisely for these psychological reasons that the accusatory system has proved to be, in the course of history, superior to the inquisitive system to get closer to the truth (in the inquisitive system, to judge, the inquisitor first needs to elaborate hypotheses of guilt, and then investigate the respective demonstrative evidence of the hypothesis, distorting impartiality – there is an inversion of reasoning). Likewise, we are not convinced by the idea that the MP, even acting before the court, does so as legal costs. This is a very popular fable. Now, the vast majority of MP opinions in the 2nd instance are in the sense of confirming and/or reinforcing the accusatory thesis presented in the reasons or counterarguments of the accusation launched by the prosecutor in the 1st instance. Furthermore, the Public Prosecutor or Regional Prosecutor of the Republic who act before the court continue to be members of the Public Ministry, the same institution to which the colleague who signs the appeal reasons belongs. This position, that of belonging to the Public Prosecutor’s Office, the institution in charge of prosecuting crimes, added to the fact that it is a colleague who provides reasons or counterarguments to the appeal, removes from the Prosecutor the possibility of being exempt. In any case, the MP’s reasons for defending the thesis that he is responsible for the law are understandable. In his subjectivity, the prosecutor considers himself impartial. The reasons for this are explained below. In order not to incur a judgment error, it is necessary to clarify the characteristic of the reasons and requests of the public prosecutor in the criminal action: partiality (by self-suggestion regarding the guilt of the accused). If we consider the fiscal MP of the law, he is as much as the defender. One oversees the law that orders the guilty to be punished, the other the one that orders the innocent to be acquitted. Both are sheriffs of criminal law. The Public Prosecutor’s Office is in charge of the typical features of the criminal law, the defense, the gaps between the typical features and also the effectiveness of the rules that exclude typicality, anti-juridicity, culpability and extinguishment of punishment. From typicalities is born the right to punish. In the black holes located between the criminal types, the right to freedom springs. Both inspections are important. But it is up to the question, what violates the legal order with greater intensity? An acquitted culprit or an innocent convicted and serving time for something he didn’t do? Which inspected legal good constitutes a greater good, the freedom of the innocent or the punishment of the guilty? There are also those who maintain that the MP is an impartial part. It is esotericism, inconsistency. The disinterested interested. Self-refuting. The expression opposing itself. The round square, in the criminalist sayings of Felipe Lopes.
Public ministry. Partiality and impartiality: It is possible to argue that the MP is both partial and impartial. This possibility explains why there is so much controversy around this topic. Objectively it is partial, it must be partial, it must be partial. The accused, in addition to full defense, has the right to a good prosecution. It is explained: without an accusatory thesis, accompanied by the respective justification, it is the defense who, in order to support its thesis, needs to develop and expose it, to then refute it. Such conduct would be harmful to the defense – it would indirectly promote the prosecution, which is not its function. In another hypothesis, it is the judge who would have to look into the evidence inquisitorially in search of evidence of the accusatory thesis, which would be completely undesirable, since it would harm impartiality. The prosecutor’s bias concerns conduct, behavior – the production of evidence, its reasoned examination and interpretation of the law. The prosecutor’s objective impartiality would cause the breach of the contradictory and full defense. Judges would be of no use. Two would be too many. On the other hand, subjectively, the MP body must remain impartial. The promoter’s impartial thinking does not harm his objective partiality, in view of the interference of auto-suggestion of institutional origin. It would be inhumane to demand subjective bias from the prosecutor. Few could be like that. It goes against the ethical nature of civilized man. Being subjectively impartial does not mean that he must be convinced of the commission of a crime and the respective authorship in order to file a complaint and support the accusatory thesis in the process. He does need to have the conviction that there is sufficient evidence to support the criminal action. Only that. If there is enough evidence, his duty is to prosecute criminal action, since, in the criminal process, he represents the social interest of society (or the State) in punishing the culprits. He is the guardian of the constitutional principle of security, a principle of which society is the creditor. In the final allegations, even if you are not personally convinced of the commission of the crime and of the authorship, if there is sufficient evidence that they are present, your institutional duty is to support the accusatory thesis (the one that has foundation). By doing so, it will be fulfilling its social and constitutional function. It will not be violating the duty of subjective impartiality. The dispute contained in the procedural relationship is not an opposition of truths, but of versions, of probabilities. Considering that the prosecutor is subject to self-suggestion, which has its origins in the institutional function, he will tend to examine the evidence and the applicable law from an accusatory point of view, even if he is absolutely convinced that he is being impartial. This is how the procedural dispute arises. That’s how it should be. One could not demand subjective partiality from the prosecutor. It would be demanding that he act against his conscience. Subjective impartiality means that you must act within the law. Process is not a game. The adversarial thesis does not convince us. It’s not a game where the most agile, fastest, smartest should win. There is, of course, strategy, but not a game with surprising plays and moves in which the weakest is at the mercy of the strongest, where the accuser/investigator can hide cards. The judge must watch over the contradictory and intervene when the defense proves to be deficient. Evidently, the prosecutor cannot withhold evidence that he has obtained. He must present it to the records. But such withholding of evidence is not uncommon. It happens that, as a general rule, it happens with subjective impartiality, that is to say, from the prosecutor’s point of view, the suppressed evidence is irrelevant for the clarification of the fact. There is no deceit there is partiality without conscience, which falls within the scope of subjective impartiality. It should be understood: the prosecutor has a subjective judgment, tangent to the evaluation of the evidence and the law, impaired by self-suggestion. There is only effective withholding of evidence when the prosecutor acts with subjective partiality, that is, aware of the value of the evidence for the defensive thesis, the withholding. Some prosecutors, more emotional, believe that they only promote the accusation of guilty. Others, in the majority, able to rationalize with regard to their institutional functions, understand that they carry out criminal prosecution as part of their official duty, and whenever there are authoritative indications. Without the full conviction of guilt, they are absolutely impartial, in their subjectivity, when they promote the accusation, whenever there is sufficient evidence. Duties are to be fulfilled. The defense also has its own. In conclusion, the subjective impartiality of the accuser, present by autosuggestion, does not prevent, or harm, the (necessary) objective partiality. It remains to say: one, the defender is also subject to autosuggestion; two, the prosecutor’s subjective bias (due to prejudice, ideology, personal interest or another cause) is cause for nullity of the process. Proof of subjective partiality is done by examining the acts of the prosecution in the course of the proceedings. see the title Proof of subjective partiality is done by examining the acts of the prosecution in the course of the proceedings. see the title Proof of subjective partiality is done by examining the acts of the prosecution in the course of the proceedings. see the title Suspicion for partiality in comments to article 104.
Understanding the partial impartiality of the prosecutor: Subjectively, the prosecutor is impartial. By this we mean that he considers himself impartial. And that’s how it should be. It must be considered. Conscious partiality is a serious deviation. Generates the nullity of the process. Objectively, it is partial, that is, its procedural conduct is, and necessarily is, partial. The contradictory is, in addition to an anomalous process exteriority, a clash between two minds, including psychic processes and intelligence. It is the fight that allows the judge to judge with serenity. Without the procedural duel, it becomes very difficult to approach the truth, the fair composition of the dispute. To explain the psychic process in which the parts are involved, we turn to an older writer. Enrico Altavilla, Italian jurist, born in 1925, anthropology scholar, author of several legal articles and works, among which, From the psychological phase of criminal anthropology to the juridical phase of criminal law, judicial confession, crimes against the person, outlines of criminal law. In his classic work Psychology Judiciary, composed of two volumes, translated into Portuguese by the publisher Armênio Amado, states that auto-suggestion is the psychic force that drives partiality, both on the part of the defender and the prosecutor. Regarding the defender, he writes that the lawyer, “in contact with his client, in his obsession with his defensive purpose, sees the formation of a second personality, by a miracle of suggestion. It is interesting to see how this suggestion creeps into conviction. He starts by listening to the client with a certain distrust, then, slowly, he becomes convinced that the arguments he presents to apologize have a certain value (…) and if, at first, he realizes that they are nothing more than defensive means, through which the truth is altered, then, thanks to a work of mental rumination, he perfects them and ends up letting himself be fascinated by such affirmations, to the point of not noticing that he is their first victim. He then proceeds to study the process: in the first reading he is impelled only by the ardent curiosity to know what is written in the records, so that he is a passive scholar, who does not seek to subject the evidence to any work of criticism or verification . (…) he prepares himself, not to reread, but to study the process. In this study, the spirit has a special polarization, which leads him to a stormy search for defensive elements (…) the conviction is modified, and, it should be noted, in few cases he is really concerned with finding out whether the accused is truly innocent, I will even say that, many times, he evades this question, so as not to be disturbed: for the lawyer it is enough to convince himself that, through the evidence gathered, the accused appears to be innocent. (…) one must bear in mind the ardent passion that drives the lawyer: he has in his hands the freedom, sometimes the life of a man and he is impelled by pains, passions, torments, which provoke in him a feeling of profound pity, because he understood them. His spirit is obsessed with serious responsibility, with concern for the thesis to be adopted, for the speech to be made. (…) It is understandable that he ends up being the victim of an unconscious work, through which the procedural matter is shaped, oriented according to the purposes of the defense, determining in him the same conviction that he wants to convey to the judge” (ALTAVILLA, Enrico Judicial psychology, 3rd ed. Coimbra: Armênio Amado, 1981). With the prosecutor, what happens is not much different. Altavilla observes that “just as the organism, constrained to a continuous flexion of certain muscles, can change its primitive streak, also the psyche, constrained to adopt a constant orientation, can undergo a modification of its logical processes. (…) Now if this work is carried out constantly, always having the same orientation, the same goal, little by little the whole psychological personality, from perception to judgment, will change, just as happens with those trees that, at the blow of a wind constant, they resist at first and resume their vertical position at each pause, but, little by little, they end up suffering, statically, the direction of that wind”. This passage from Altavilla’s work reminds us of Montaige’s irony when he writes about the force of habit: “It seems to me that the force of habit understood very well who first invented this story of a woman who, having become accustomed to caressing and carry a calf in your arms, from birth, and doing so daily, he arrived by force of habit to carry it even when it had already become an ox. For custom is indeed a perfidious and tyrannical teacher. Little by little, in secret, it gains authority over us, at first tender and humble, implants itself in the course of time, and asserts itself, suddenly showing us an imperative expression to which we dare not even raise our eyes” ( MONTAIGNE, Michel de. Essays. São Paulo: Abril Cultural, 1972). Altavilla continues: “Here is the syllogistic vice of his reasoning: he instinctively arranges the logical terms of a demonstration backwards; guilt, which should be the last consequence of his reasoning, the logical result of the judicial inquiry, becomes a presupposition from which, to return to it through a demonstration, supported by the evidence collected below. So the Public Prosecutor’s Office is not concerned with ascertain whether the accused is guilty, but in demonstrating that he is guilty. (…) It happens that this person ends up having a one-sided perception, instinctively devaluing any element favorable to the accused and giving exaggerated importance to those that harm him. It should be added that he is convinced that he is always afraid of snares on the part of the accused and his defender, to the point of suspecting all defensive means without subjecting them to a sufficient critical examination. (…) well, if during the instructional period two theses are contradicted, the Public Prosecutor’s Office should always feel the duty to make the witnesses who believe one or the other of these theses heard in hearings. (…) Well then: thousands of cases can be consulted, without finding a single Public Ministry that, at least once, has indicated a witness for the defense and if, sometimes, it indicates witnesses presented by the defendant in the investigation, it is only when they have deposed circumstances favorable to the prosecution. (…) public prosecutors are often men of keen intelligence, accustomed to the battle of everyday controversy, endowed with great mental agility, due to the extemporaneousness to which they are obliged, since they must continually face issues they never thought about, fighting with opponents who come armed with wise preparation. They have, therefore, that same self-suggestive malleability of the lawyer, for whom a thesis that begins by arousing distrust ends up convincing profoundly, and certain sophisms acquire the strength of arguments, especially at the public hearing, in friction with the opponent, in the presence of the doubts of the judge, in the intellectual tension of the fighter who is determined to make his thesis triumph. Now, I will repeat,
Doctrine
Flavio Meirelles Medeiros: Public Ministry. Part or fiscal of the law? Jusbrasil Magazine.
Rômulo de Andrade Moreira : Prosecutors cannot contribute to the unjust conviction of someone . Conjure
Powers of the Public Ministry
The Public Prosecutor’s Office in the investigation: We examine whether or not the Public Prosecutor’s Office can initiate, progress and end the investigation, a complex issue, in the comments to Article 4. in the title The Public Ministry in the investigation .
Constitutional powers: Article 129 of the CF states that the Public Ministry’s institutional functions are: to issue notifications in administrative procedures within its competence, requesting information and documents to instruct them, in the form of the respective complementary law (item VI); request investigative diligences and the initiation of a police inquiry, indicating the legal grounds for their procedural manifestations (item VIII).
The MP assisting in the investigation: The MP can participate in the police investigation by assisting the police chief, 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 of the complaint ” .
Requesting an investigation or initiating criminal action: According to article 5 of the CPP , in crimes involving public action, the police investigation may be initiated ex officio or upon request by the judicial authority or the Public Prosecutor’s Office. Article 40 of the CPP provides that, when, in records or documents known to them, judges or courts verify the existence of a public action crime, they will send to the Public Prosecutor’s Office the copies and documents necessary to file the complaint. With these documents, according to article 46 of the CPP , for the purpose of filing the complaint, the Public Prosecutor’s Office may waive the police investigation. In this case, the deadline for filing the complaint will run from the date on which you received the information or representation.
Requesting additional documents: Pursuant to Article 47 of the CPP , if the Public Ministry deems further clarification and additional documents or new elements of conviction to be necessary, it may request them directly from any authorities or officials who must or can provide them.
Various powers granted by Complementary Law n. 75/93: Pursuant to article 8 of Complementary Law n. 75/93, for the exercise of its attributions, the Federal Public Prosecutor’s Office may, in the procedures within its competence: notify witnesses and request their coercive conduct, in the case of unjustified absence; request information, exams, expertise and documents from direct or indirect Public Administration authorities; request from the Public Administration temporary services of its servants and material means necessary to carry out specific activities; request information and documents from private entities; carry out inspections and investigative diligences; have free access to any public or private place, respecting the constitutional norms pertinent to the inviolability of the domicile; issue notifications and subpoenas necessary for the procedures and investigations it initiates; have unconditional access to any database of a public nature or relating to a service of public relevance; request the assistance of the police force.
Extension of the powers of the MPF to the MPE: Analogous powers are granted to the State Public Prosecutor’s Office with Law nº 8.625 of 2.12.93, article 26, item I, letters b and c, items II, IV and also with the provisions of article 80, according to which the norms of the Organic Law of the Federal Public Prosecutor’s Office are applied to the Public Prosecution Offices of the States.
Doctrine
Damásio de Jesus: Investigative Powers of the Public Ministry . Legal Content.
Francisco Dirceu Barros : Complete study of the criminal non-prosecution agreement and the new criminal investigation procedure.genjuridico.com.br. The Promoter of Justice, Master and Professor Francisco Dirceu Barros develops a comprehensive study on the criminal investigative procedure (PIC), regarding its legitimacy and regulation by resolution n. 181. “(…) In this scenario, the National Council of the Public Ministry recently published, on August 7, 2017, Resolution No. 181, disciplining, in a more exhaustive way than its predecessor, the conduct of investigation in criminal investigative procedure ( PIC) and aims to make investigations faster, more efficient, less bureaucratic, informed by the accusatory principle and respectful of the fundamental rights of the investigated person, the victim and the prerogatives of lawyers (…)” – Continues in part 2 here .
Henrique Hoffmann: MP cannot turn failed investigations into inquiries . Conjure
Marcelo Galli: Public Ministry can investigate crimes on its own, decides Supreme . Conjure
Marcelo Galli: Supremo authorizes members of the MP to tap phones and break secrecy . Conjure
Renato Marcão: Criminal Investigation Promoted by the Public Ministry . Legal Content.
Romulo de Andrade Moreira. In the country of resolutions and statements, who needs a law ? Justifying.
Valdinei Cordeiro Coimbra: Understand what PEC 37 is (impunity or legality of investigations?) Legal Content.
Jurisprudence:
Deadline for MP appeals in criminal matters: In criminal matters, the Public Ministry does not enjoy the prerogative of counting the appeal deadlines twice ( AgRg no EREsp 1.187.916-SP, Reporting Min. Regina Helena Costa, judged on 11/27 /2013 – Bulletin nº 533 ).
The Public Ministry is not prohibited from carrying out investigative measures: The Public Ministry is not prohibited from carrying out investigative measures, according to the systemic interpretation of the Federal Constitution (art. 129), the Criminal Procedure Code (art. 5) and Complementary Law 75/ 1993 (art. 8) ( RHC 97.926/GO, rel. Min. Gilmar Mendes, judged on 9/2/2014, judgment published in the DJE of 9/29/2014 – Newsletter 757, Second Panel). INVESTIGATION
Possibility and conditions for the Public Ministry to investigate: The Public Ministry has the competence to promote, by its own authority and for a reasonable period of time, investigations of a criminal nature, provided that the rights and guarantees that assist any defendant or any person under investigation of the State. The hypotheses of constitutional reservation of jurisdiction must always be observed by their agents, as well as the professional prerogatives with which lawyers are vested in our country (Law 8.906/1994, art. 7, notably items I, II, III, XI, XIII, XIV and XIX), without prejudice to the possibility – always present in the Democratic State of Law – of the permanent judicial control of the acts, necessarily documented (Binding Precedent 14), practiced by the members of the institution (RE 593.727, rel. orig. min. Cezar Peluso, rel. w/ ac. min. Gilmar Mendes, judgment on 14-5-2015, judgment published in the DJE of 8-9-2015 – Bulletin 785, General Repercussion). INVESTIGATION
Investigation by the MP: Initial petition of the direct action of unconstitutionality proposed by the Association of Brazilian Magistrates – AMB, having as object Resolution n. 181, of 8/7/2017, of the National Council of the Public Ministry ( Conju r). See ADI 5790 .++
Standards
Resolution n. 181, of August 7, 2017: Provides for the initiation and processing of the criminal investigative procedure in charge of the Public Prosecutor’s Office.
Supervision of the execution of the sentence
The Public Prosecutor in the sentence execution phase: According to article 67 of Law n. 7.210/84 (Criminal Execution Law), the Public Prosecutor’s Office must supervise the execution of the sentence. It is also incumbent upon Article 68 of said law: I – inspect the formal regularity of collection and hospitalization forms; II – request: a) all measures necessary for the development of the executive process; b) the initiation of incidents of excess or deviation from execution; c) the application of a security measure, as well as the replacement of the penalty by a security measure; d) revocation of the security measure; e) the conversion of sentences, the progression or regression in the regimes and the revocation of the conditional suspension of the sentence and the conditional release; f) hospitalization, discharge and restoration of the previous situation. III – file appeals against decisions handed down by the judicial authority during the execution.
