Art. 29. Private action will be admitted in crimes subject to public action, if it is not filed within the legal period, and the Public Prosecutor’s Office will be responsible for amending the complaint, repudiating it and offering a substitute complaint, intervening in all terms of the process, providing evidence, lodge an appeal and, at any time, in the event of negligence by the plaintiff, resume the action as the main party.
Private action in crimes of public action
Legal hypothesis: If the public criminal action (of the crimes of public action) is not brought, upon the MP’s complaint, within the legal deadline (deadlines of article 46 ), the filing of a private action through the victim’s complaint is admitted.
Constitutional basis: The subsidiary private criminal action is a constitutional guarantee. It constitutes a stony clause. It is stipulated in article 5, item LIX of the CF , which admits private action in crimes involving public action, if this is not brought within the legal term.
Deadline: The victim or his legal representative loses the right to file a complaint if he does not exercise it within a period of six months, counting from the day on which the deadline for filing a complaint expires (article 38 of the CPP ) .
Inertia of the MP and subsidiary private criminal action : Prosecutor who, in possession of an investigation of the arrested suspect, exceeds the deadline of article 48 of the CPP, without requiring diligence or offering a complaint. Pertinence, in this case, of subsidiary private criminal action (RHC 19091, STJ, Fifth Panel, Rapporteur Min. Assis Toledo. Decision date 8.26.92, DJU 9.14.92, p.14.980).
The archiving of the investigation within the legal period does not preclude the private action
Archiving the investigation does not preclude subsidiary private action : In the past, it has been discussed whether the request for archiving (in the original wording of Article 28, the prosecutor required the judge to archive) was equivalent to not filing the criminal action within the legal period for the effects of article 29. This was recorded, for example, on the occasion of the appreciation by the 2nd Panel of Extraordinary Appeal (RE) nº 8.777, reported by Justice Bento de Faria, in the judgment session of 12/15/1944, winning the Justices José Linhares and Orozimbo Notato. To illustrate the thesis that prevailed, the following excerpt from the rapporteur’s vote follows: “Article 29 of the Criminal Procedure Code provides that — Complaints will be admitted in crimes involving public action if it is not filed within the legal period, observing, of course, the period established in article 38, that is, provided that the victim’s activity is carried out within a period of six months from the day in which it comes to know who is the author of the crime, or in the case of art. referred to above, which configures the hypothesis of the day on which the deadline for offering the complaint expires. However, the public action was not filed within the legal period, since the complaint was not offered. Consequently, said action was not promoted by M. Público, since he refused to do so, requesting the closure of the investigation. Therefore, the offended party could take the initiative.”The same understanding was recorded in the following judgments: RE nº 13.026, 1st T., unanimous, rapporteur Justice Laudo de Camargo, j. 10/13/1948; RE nº 17.779, 1st T., by majority, rapporteur Minister Afrânio da Costa, minister José Linhares, j. 10/30/1950; RE nº 21.157, 2nd T., unanimous, rapporteur minister Afrânio Costa, j. 10/14/1952; RE nº 30.051, 2nd T., rapporteur Justice Rocha Lagoa, Justices Edgard Costa and Orozimbo Nonato, j. 12/20/1955; RE nº 28.677, 2nd T., writer of the judgment Lafayete de Andrada, j. 12/27/1955, the rapporteur Minister Orozimbo Nonato and Minister Edgard Costa won. Over time, however, there was a change in understanding, overcoming the thesis that, in the face of a request for dismissal granted by the judge, there is no subsidiary private criminal action. This is the current understanding: with the filing ordered by the prosecutor, there is no right to bring a subsidiary criminal action. It is not convincing, however, and for the following reasons:
1 – The principle of legality, also called the principle of obligatoriness or inevitability of the action, has as its cause the interest of the community in the performance of criminal law. It follows that the body in charge of promoting the criminal action does not have discretionary powers. If there is sufficient evidence of the commission of a crime and authorship, the Public Prosecutor’s Office has the obligation to promote criminal action. The State’s persecutory obligation derives, expressly, from article 24 of the Code of Criminal Procedure: in crimes involving public action, this will be promoted… use of discretionary power, remediable through judicial intervention upon receipt of the subsidiary complaint.
2 – The filing of a criminal action does not constitute a discretionary act. It is an act subject to pre-established legal requirements. The MP does not have the power to choose whether to report or not, if the requirements of the duty to report are met. By examining its assumptions and receiving a subsidiary complaint, the judiciary is, by way of transverse route, reviewing and nullifying the MP’s illegal act. No act that violates the law escapes judicial review. If even an act by the Minister of State and the President of the Republic is subject to the appreciation of the Judiciary, as to legality and constitutionality, why could the MP’s illegal act/omission not be reviewed? Upon receipt of a subsidiary complaint, with an investigation filed and evidence of crime and authorship present, the Judiciary is not reviewing a discretionary act, but carrying out a legality control of the act. The hypothesis that the investigation was archived by the Public Prosecutor’s Office attributes, in the words of Raymundo Cortizo Sobrinho, jurisdiction to a body that does not have a judicial role, which is not consistent with the constitutional spirit of the division of powers. The MP does not have jurisdictional power to decide definitively on the application of the law. The violation of rights can always be analyzed by the constitutionally competent body, the Judiciary (Appropriateness of private criminal action as a subsidiary of public criminal action in the filing of a police investigation . jus.com.br, 2004).
3 – Article 29 of the CPP admits private action if the public one is not brought within the legal period. This device does not clarify the reason for not filing the action within the deadline, so it does not matter that the investigation was shelved. If the action was not filed within the legal period , private action is appropriate. The law does not say if it is not provided in the filing within the legal period, it will be up to private action . It only says that a subsidiary complaint is applicable if the public action is not proposed within the legal period. If the MP arranges for archiving, the action is not proposed within the term of the law. The traditional understanding carries out a restrictive interpretation in violation of stony clauses – which violates the maximum effectiveness of fundamental rights -, namelyarticle 5, item XXXV of the Federal Constitution , according to which the law will not exclude injury or threat to the right from the Judiciary , and article 5, item LIX of the CF , which provides for subsidiary private criminal action.
4 – The accusatory principle, according to Ferrajoli, cited by Márcio Adriano Anselmo in the article Reflections on criminal (in)action and subsidiary action , CONJUR, 2019, does not imply exclusivity of criminal action. The accusatory principle simply means that someone must promote the accusation in the criminal process. According to article 129, item I of the CF, it is the institutional function of the Public Prosecutor’s Office to promote, privately, public criminal action . Public criminal action is exclusive to the MP. Private is not. The subsidiary share is private. The subsidiary private action constitutes a fundamental right and an immutable clause ( article 5, item LIX of the CF ). Since it is a fundamental individual right, the subsidiary complaint should be interpreted according to the postulate that the doctrine calls “maximum effectiveness of fundamental rights” .
5- In the 1980s, the general part of the CP was repealed by virtue of Law nº 7.209, of July 11, 1984, but a virtually identical wording rule became part of paragraph 3 of article 100, currently in force: “ the private initiative action may be taken in crimes of public action, if the Public Prosecutor’s Office does not file a complaint within the legal period” . The constituent of the 1980s was also not sensitive to the new understanding of the STF. Indeed, the 1988 Constitution enshrined in its list of guarantees and individual rights a rule that reproduces the initial part of article 29 of the CPP and paragraph 3 of article 100 of the CP. This is what we have in item LIX of article 5: “private action will be admitted in crimes of public action, if this is not brought within the legal period”. The constituent could have chosen to say “private action will be admitted in crimes of public action, if the archiving is not provided within the legal period” , but this was not the expression used. The focus was on the absence of complaints, in line with previous legislative texts.
Missing complaint regarding facts or defendants: If the prosecutor denounces without including some defendants or without imputing certain facts, is it appropriate, in relation to the defendants and omitted facts, a subsidiary private action? We understand not. The omission is equivalent to a request for dismissal in relation to the defendants and omitted facts (implicit request for dismissal).
Márcio Adriano Anselmo: Reflections on criminal (in)action and subsidiary action . Conjure
Meirelles Medeiros. Flavio and Luciano, Pablo Bezerra: Subsidiary complaint and control of filing inquiries at the STF. Conjure
Forgiveness, peremption, waiver and decay
Inadmissibility of pardon and peremption : Pardon and peremption are not admissible in subsidiary private criminal action, as these two institutes only apply to crimes in which only proceeds upon complaint ( Articles 105 of the CP and 60 of the CPP ).
Admissibility of waiver: Article 104 of the CP says that the right of complaint cannot be exercised when waived. As article 104 of the CP does not distinguish the proposed complaint in private action crimes from the one offered in public action crimes, the waiver applies to both cases.
Admissibility of the decay: The victim or his representative loses the right to file a complaint if he does not exercise it within a period of six months from the day on which the period for filing a complaint expires (article 38 of the CPP ) .
The Public Ministry and the Subsidiary Complaint
The role of the Public Prosecutor’s Office: Once the subsidiary complaint has been filed, it is up to the Public Prosecutor’s Office to amend it, repudiate it and offer a substitute complaint, intervene in all terms of the process, provide evidence, file an appeal and, at any time, in case of negligence of the plaintiff, resume the action as the main part.
The non-addition. Consequences: The non-addition by the MP only means that he has nothing to rectify or complement. Silence, without repudiation, means that the MP agrees with the terms of the filed complaint.
The repudiation. Consequences: In the case of repudiation of the subsidiary complaint by the MP, it has been argued that the action cannot be continued, unless the precept of article 28 is applied, by extension, and another prosecutor is designated to officiate in the case . We do not agree with this position. This conception turns into a dead letter the rule of this article 29 of the CPP, according to which private action is possible in crimes of public action when it is not brought within the legal term. If the MP expressly repudiates, without offering a substitute complaint – and, in the case of repudiation, he is not obliged to offer a substitute complaint –, it is up to the judge to decide whether or not to accept the complaint.
Offer of substitute complaint: Rejecting the substitute complaint, the MP may or may not offer the substitute complaint. It will not offer if it understands that the presuppositions of the power-duty to denounce are not present. It will offer if it understands that yes, that the assumptions of the power-duty to denounce are present, and the criminal complaint, for various reasons, does not meet the requirements of an initial accusatory piece of criminal proceedings. It will be up to the magistrate to decide whether to receive the criminal complaint or the substitute complaint (there are those who maintain that they should receive the complaint).
In summary: If the MP is silent (not amending), it is because he agrees with the terms of the complaint; if it adds, it is because it agrees, completing or partially rectifying the complaint; if he repudiates, without offering a substitute complaint, it is because he does not agree with the filing of the criminal action – a repudiation that is not binding on the judge, and who will decide whether or not to accept the complaint -; if he repudiates and offers a substitute complaint, it is because he agrees with the filing of the criminal action, but is not satisfied with the terms of the criminal complaint, and, in this case, there is no rule that hinders the freedom of the judge to decide which accusatory initial will receive .
Nullity: The intervention of the MP in all terms of the action brought by the offended party in public action crimes (subsidiary private action) is mandatory, under penalty of nullity (article 564 , item III, letter d ).
Resuming the action as the main party: In the criminal action initiated through a substitutive complaint, the Public Prosecutor’s Office only resumes the action as the main party in the case of negligence by the plaintiff (a fact that depends on judicial recognition at the request of the MP).
Filing request : In view of the judicial filing carried out at the MP’s request, there is no subsidiary claim (RT 597/421). In the same sense: STF, RT 653/398.
Missing complaint : If the complaint, despite being offered and received, accepts only part of the representation, without pleading, substantiatedly, its archiving regarding the other infractions included therein, the representative’s criminal complaint is appropriate (RT 627/316).
Unnecessary diligence requirement : If the complaint is not offered within the legal period, due to the unnecessary diligence requirement, private criminal action is applicable (TASP, RT 643/306).