Art. 28. If the Public Prosecutor’s Office, instead of presenting the complaint, requests the archiving of the police inquiry or any pieces of information, the judge, in case he considers the reasons invoked to be unfounded, will send the inquiry or pieces of information to the attorney general, and he will offer the complaint, designate another body of the Public Prosecutor’s Office to offer it, or insist on the request for archiving, which only then will the judge be obliged to comply with.
Art. 28. Once the police inquiry or any information of the same nature is archived, the Public Prosecutor’s Office will notify the victim, the investigated person and the police authority and will forward the case to the ministerial review body for homologation purposes, in the form of the law. (Wording given by Law No. 13.964, of 2019) (Effective)
§ 1 If the victim, or his legal representative, does not agree with the archiving of the police investigation, he may, within 30 (thirty) days of receiving the communication, submit the matter for review by the competent body of the ministerial body, as provided for in the respective organic law. (Included by Law No. 13,964, of 2019) (Effective)
§ 2 In criminal proceedings relating to crimes committed to the detriment of the Union, States and Municipalities, the review of the archiving of the police investigation may be provoked by the head of the body responsible for its judicial representation. (Included by Law No. 13,964, of 2019) (Effective)
Suspended effectiveness of the device: Suspended the effectiveness of this device by means of an injunction in ADI 6.305 .
Filing order, appeal, communications and review jurisdiction
Determining archiving: Upon receipt of the investigation records (inquiry or criminal investigation procedure), if the prosecutor, after examining the evidentiary evidence, concludes that there is no just cause to denounce (see title The Right-duty to denounce in the comments to Article 24), must launch a substantiated quote determining the administrative shelving of the investigation. Its decision must then be communicated to the victim (who has thirty days to file an appeal) and to the person under investigation, and the case files forwarded to the review body. At the ministerial review level, the decision may or may not be ratified. If approved, the investigation is archived in the domains of the Public Prosecutor’s Office. If there is no homologation, the review body designates another member of the Public Prosecutor’s Office to file the complaint.
Victim’s appeal: The victim’s appeal can be filed both with the prosecutor and directly with the review body. If presented before the prosecutor and the file has already been filed, the appeal will be forwarded to the revisional instance. In view of the deadline granted to the victim to appeal, the appeal should not be followed up before the appeal period has expired. The subpoena of the investigated person is justified, since he can offer written reasons, to strengthen those launched by the prosecutor.
Review competence: Giving the final word to a review body makes it possible to achieve the desirable uniformity of criminal prosecution. At the State Public Prosecutor’s Office, the review of the filing order is the responsibility of the Attorney General. At the Federal level, in charge of the Coordination and Review Chambers ( art. 62, item IV, of LC 75/1993 ), except in cases of original competence of the Attorney General of the Republic.
Absence of judicial intervention: There is no longer the judicial intervention that was foreseen in the revoked wording of this article 28. The accusatory, constitutional ( article 129, item I of the CF ) and infraconstitutional (article 3-A) system is reinforced .
Communication to the police authority and the guarantees judge: Once the shelving has been decided in the 1st administrative instance, the prosecutor must communicate, regardless of the review, to the guarantees judge, so that imprisonment, non-prison precautionary measures and possibly applied security measures can be revoked. The judge of guarantees must also determine that the notary update the individual bulletin with the information from the archiving of the file, for the purpose of sending it to the Institute of Identification and Statistics (article 809, paragraph 3 of the CPP ) .
Review competence: Giving the final word to a review body makes it possible to achieve the desirable uniformity of criminal prosecution. At the State Public Prosecutor’s Office, the review of the filing order is the responsibility of the Attorney General. At the Federal level, in charge of the Coordination and Review Chambers ( art. 62, item IV, of LC 75/1993 ), except in cases of original competence of the Attorney General of the Republic.
archiving
Party initiative principle: Article 28 of the CPP reflects the adoption of the party initiative principle. Also called the principle of action, it translates the indispensability of the party’s request for the jurisdictional provision to be granted. If the judge could prosecute criminal proceedings ex officio, it would be difficult for him to remain impartial at trial. Hence it is said that the principle of action reinforces that of impartiality. The decision regarding the filing of criminal action rests with the Public Prosecutor’s Office.
Filing in the Special Court: In the Special Court, the application of a penalty restricting rights or fines should only be proposed if this is not the case for filing ( article 76 of Law n. 9099/95 ). As the procedure under this law is not preceded by an inquiry, the defense deserves special attention to examine the existence of just cause for the criminal action before accepting any proposal for a penalty restricting rights or a fine. There is no reason to agree if there are not enough evidentiary elements to file a criminal action.
Implicit request to archive:The filing order must be substantiated. If an indictee or a criminal hypothesis represented in the informative history (in the investigation or in the pieces of information) is not denounced, it is because in relation to that indictment or that hypothesis the so-called implicit archiving is present. Without justification, implicit, but, in any case, filing with all the legal effects arising from this act. Absolutely, the contrary opinions that support the non-existence of the implicit request for archiving do not convince. It is not because the act was not expressed that it will not exist. Exist. The archiving, with the lapse of the term, was effected. The prosecutor cannot file defectively in order to be able to unarchive and denounce whenever he sees fit. It would make no sense to believe that the prosecutor can shelve the punitive claim for a while to later unarchive it, according to his convenience, utility or benefit. Legality cannot be put in your pocket to be taken advantage of in a timely manner. The Public Prosecutor’s Office cannotpersecutio criminis until the prescription of the crime. The principle of obligation means that the Public Prosecutor’s Office cannot dispose of punitive claims. He cannot have the right to punish at his disposal to use, not to use, to use whenever he wants. Two hundred implicit filings devoid of legal filing effects represent at least two hundred hostages of the ministerial opinio delicti . That’s a lot of punitive pretense for someone who can’t even have one (any pre-procedural agreement is conditional on legality, not will). It is a violation of the principle of obligation. Purposeful Implicit ArchivingOK? How is it distinguished from accidental? Having a large number of defendants in custody, holding over them the right to criminal prosecution while the statute of limitations is not extinct would be quite a prerogative. Curious institute. They would be hostages of silence. Thus, since it is clear that the implicit request for archiving has the same effects as the express request, it can only be undone with the emergence of new evidence, that is, the reopening of investigations will only be appropriate if new evidence emerges (article 18 of the CPP ). Finally, it remains to be noted that if one adopts the thesis that there is no implicit archiving, the legal deadline for filing a complaint not being observed, a subsidiary private criminal action is appropriate.
Jurisprudence
Implicit filing : The silence of the Public Prosecutor’s Office in relation to the accused whose names only appear later in addition to the complaint does not imply filing in relation to them. The process is only considered filed with the order of the judicial authority (CPP, article 18) (STJ – DJU 14.09.92 – p. 14.979). Same meaning: The silence of the Public Prosecutor’s Office in relation to the accused whose names only appear later in addition to the complaint does not imply shelving in relation to them. The process is only considered archived with the order of the judicial authority (CPP, article 18) (HC 12600, STJ, Fifth Panel, Rapporteur Min. Edson Vidigal. Decision date 8.20.92, DJU 9.14.92, p. 14.979).
Appeal against the decision to archive : In the Brazilian legal system, there is no possibility of appeal against a judicial decision that accepts a request to archive pieces of information manifested by the Public Prosecutor’s Office, owner of the criminal action, in view of the principle enshrined in parêmia ne procedat iudex ex officio, according to torrential jurisprudence and peaceful doctrinal guidance (TRF – 4th Region – DJU 03.02.93, p. 1.977). In the sense that an appeal is possible, an isolated decision, but with convincing arguments by Roberto Nicolau Frantz: RJTJRS 98/20.
Implicit archiving: In public criminal proceedings, the Public Prosecution Service is not obliged to denounce all those involved in the fact considered to be criminal, and it is not possible to speak of implicit archival in relation to those who were not denounced ( RHC 34.233-SP, Reporting Min. Maria Thereza of Assis Moura, judged on 5/6/2014 – Newsletter No. 540 )
Recognition of exclusion of illegality and reopening of archived police investigation: It is possible to reopen the archived police investigation due to recognition of exclusion of illegality ( HC 125.101, rel. orig. min. Teori Zavascki, rel. p/ o ac. min. Dias Toffoli, judgment on 25-8-2015, judgment published in the DJE of 11-9-2015 – Newsletter 796, Second Panel).
Inapplicability of art. 28 of the CPP in investigative procedures originally processed by the STJ: If a member of the MPF, acting at the STJ, requests the shelving of the police investigation or any pieces of information that were originally processed by this Superior Court, the latter, even considering the reasons invoked to be unfounded, shall determine the requested archiving, without the possibility of sending it to the Attorney General of the Republic, not applying art. 28 of the CPP ( Inq 967-DF, Reporting Judge Humberto Martins, judged on 3/18/2015, DJe 3/30/2015 – Newsletter 558 ).
Prohibition of subsidiary private criminal action
Archiving. Subsidiary private criminal action not appropriate: Once the inquiry is archived by the Public Prosecutor’s Office, it is not appropriate to file a subsidiary private criminal action. Private action in crimes subject to public action can only be proposed if the latter, in the words of article 29 , is not brought within the legal period (deadlines in article 46). It has been understood that private action in a public action crime can only be proposed in the face of the inertia of the Public Prosecutor’s Office. If this body does not remain inert, providing for the archiving, there is no room for substitutive private action. In times past, as reported by Eduardo Espínola Filho ( in Code of Brazilian Penal Process Annotated. 5. ed. Rio de Janeiro: Rio, 1976) in comments to article 29, this issue was not completely peaceful. There was understanding in the sense that the filing request was equivalent to not filing the action within the legal term for the purposes of article 29 . This is our understanding as set out in the heading Legal term in comments to Article 29.
Jurisprudence
Archival of the police investigation and the victim: In the unconditional public criminal action, the victim does not have a definite right to prevent the archiving of the investigation or the pieces of information ( STJ, MS 21.081-DF, Reporting Minister Raul Araújo, judged in 6/17/2015, DJe 8/4/2015 – Newsletter 565 ).
Filing of the PIC determined by the Attorney General of Justice: The filing of the Criminal Investigation Procedure (PIC) determined by the Attorney General of Justice, in cases of its original attribution, does not require prior submission to the Judiciary ( MS 34.730 , rel. min. . Luiz Fux, DJE of 24-3-2020.).
unfiling
Only with new evidence: Once the investigation is archived due to lack of evidence, the police authority cannot proceed with new investigations, unless it has news of new evidence. The archiving of the inquiry becomes res judicata , the expression used in the sense that this decision will only be modified if new evidence emerges. It is the principle of stability of legal relations overcoming the principle of investigation of the crime. The new test, as recorded by the STF, must be substantially innovative and not just formally new (RT 540/393). See Precedent 524 of the STF .
Jurisprudence
Effects of archiving the police investigation due to the recognition of self-defense: Once the police investigation is closed due to the recognition of self-defense, the material res judicata prevents the criminal case from being discussed again in any new criminal case, ruling out the need to investigate the existence of new evidence (REsp 791.471 -RJ, Judge Nefi Cordeiro, judged on 11/25/2014, DJe 12/16/2014 – Newsletter 554 ).
Filing the investigation in the face of the exclusion of unlawfulness does not constitute res judicata: The archiving of a police inquiry, by recognizing the exclusion of unlawfulness, does not render res judicata nor cause estoppel ( HC 87.395, rel. min. Ricardo Lewandowski, DJE of 13-3 -2018 ).
popular economy
Official appeal: Pursuant to the provisions of article 7 of Law no. 1,521, of December 26, 1951 , a law that deals with crimes against the popular economy, the judge must appeal ex officio whenever he determines the archiving of police investigation records (inquiry that has as its object the crimes defined in Law n. 1,521 ). Said provision has been revoked, as it is no longer the judge who determines the closure of the investigation.
designated promoter
Obligation to denounce: It is not up to the public prosecutor appointed by the review body to inquire about their conscience as to whether or not the denouncement is appropriate. Acts by delegation. It is only up to you to report. The thesis that the designated prosecutor is appointed for the purpose of reassessing the appropriateness or not of the criminal action is not convincing, and may, therefore, insist on the request for shelving. If the delegation violates the conscience of the designated prosecutor, he is not obliged to denounce. He must launch an order in the records, requesting that another colleague be designated. When it comes to an intimate reason, you don’t need to expose it. Depending on the circumstances, the institution of the Public Prosecutor’s Office may deem further clarification necessary.
new evidence
Unarchiving. View to the Public Prosecutor’s Office: As highlighted by Tourinho Filho, if the magistrate receives new evidence relating to an archived investigation, he must determine to view the investigation accompanied by the new evidence to the Public Prosecutor’s Office (TOURINHO FILHO, Fernando da Costa. Criminal procedure. 5. ed. Bauru: Jalovi , 1979, vi, p. 365). If the prosecutor understands that there is evidential support, he will file a criminal action.
In the Courts
Archiving request: It is incumbent upon the College of Attorneys of Justice to review, upon request of a legitimate interested party, the decision to archive a police investigation or pieces of information determined by the Attorney General of Justice, in cases of their original attribution (item XI of article 12 of Law n. 8.625/1993 ). As for the order of the regional attorney of the Republic, an appeal may be made to the attorney general of the Republic. There is no appeal against the decision of the Attorney General of the Republic before the STF.
Revision of archiving upon request of the interested party: It is incumbent upon the College of Attorneys of Justice to review, upon request of a legitimate interested party, the decision to archive a police investigation or pieces of information determined by the Attorney General of Justice, in cases of their original attribution (item XI of article 12 of Law n. 8.625/1993 ).
Jurisprudence
Rejection of request for archiving and referral to the PGR : Once the request for archiving the investigation has been rejected by the Federal Regional Court, the case must be sent to the Attorney General of the Republic, pursuant to art. 28 of the Criminal Procedure Code (TRF3 – Nery Junior – 2004.61.07.002140-0).
Request for dismissal and subsidiary private action : The request for dismissal of the investigation, made by the representative of the Public Prosecutor’s Office, is not binding on the Court. The rejection of the request opens the possibility of filing a subsidiary private criminal action (STJ – Full – DJU 14.12.92 – p. 23.875). On the contrary: if, at the discretion of the Attorney General, there are no elements that justify the filing of a complaint, the Court cannot oppose the request for dismissal made by the head of the Public Ministry (STF – Plenary – DJU 19.04.91, p. 4.581) . In the same sense: RT 619/367.
Denial of filing by the TRF and remittance to the Attorney General : As for the action of original competence of the Federal Regional Court: the Court may reject the filing request made by the Attorney General, ordering the referral of the records to the Attorney General of the Republic, for that it initiates the criminal action, without this measure implying interference in the functional independence of that Body (TRF – 5th Region – Plenary – DJU 05.06.92 – p. 16.007).
Receipt of complaint
Necessity of substantiation: The receipt of the complaint must be substantiated. See title Reasons for receiving the complaint in notes to Article 396.
