Art. 39. The right of representation may be exercised, personally or by an attorney-in-fact with special powers, by means of a written or oral statement made to the judge, the Public Prosecutor’s Office, or the police authority.
§ 1 The representation made orally or in writing, without duly authenticated signature of the victim, of his legal representative or attorney, will be reduced to term, before the judge or police authority, present the Public Prosecutor’s Office, when it has been addressed .
§ 2 The representation will contain all the information that may serve to verify the fact and authorship.
§ 3. Once the representation has been offered or reduced to term, the police authority will carry out an investigation, or, if it is not competent, will send it to the appropriate authority.
§ 4 The representation, when made to the judge or reduced to a term before him, will be sent to the police authority so that it can carry out an investigation.
§ 5 The Public Prosecutor’s Office will waive the investigation, if with the representation elements are offered that enable it to promote the criminal action, and, in this case, it will offer the complaint within fifteen days.
https://www.youtube.com/embed/_vbIeayfETo?feature=oembedThis same video appears in articles 25, 38 and 39 .
Under 18 years old: If the victim is under 18 years old, representation will be offered by his representative.
Minors under 18 or mentally retarded without a representative: Representation may be provided by a special guardian appointed by the judge ( article 33 applies ).
The figure of the representative: The representative of the minor, for the purposes of the provisions of article 24 , is not necessarily his father or mother. It can be anyone who is responsible for the minor. In this way, it could be any relative or any person who has custody of the minor.
Illegitimacy of the representative: Can be remedied ( article 568 ).
The so-called “mixed norms : See this same subheading under the heading Criminal law and criminal procedure in time, in comments on Article 2 .
Custody of a minor : The representation can be made by the person who has custody of the minor (RJTJRS 94/185).
Embezzlement, representation and retroactivity: The retroactivity of representation in the crime of embezzlement does not reach those processes whose complaint has already been offered ( HC 573.093-SC ), Rapporteur Min. Reynaldo Soares da Fonseca, Fifth Panel, unanimously, judged on 06/09/2020, DJe 06/18/2020).
Embezzlement, representation and retroactivity: The retroactivity of representation in the crime of embezzlement reaches all cases that have not yet become final ( HC 583.837-SC ), Rapporteur Min. Sebastião Reis Júnior, Sixth Panel, unanimously, judged on 08/04/2020, DJe 08/12/2020).
Fraud, representation and retroactivity: The demand for representation of the victim in the crime of larceny does not retroact to cases whose complaint has already been filed ( HC 610.201/SP , Judge Ribeiro Dantas, Third Section, by majority, judged on 03/24/ 2021).
Fraud and representation: The amendment promoted by Law 13.964/2019, which introduced § 5 to art. 171 of the Penal Code (CP) (1), by conditioning the exercise of the State’s punitive claim to the representation of the offended person, must be applied retroactively to cover both criminal actions that have not been initiated and ongoing criminal actions until the transit in judged ( HC 180421 AgR/SP, rapporteur Min. Edson Fachin, judgment on 6.22.2021 ).
Representation through attorney
Comments: The representation can be made through a proxy, as long as he has special powers. The lack of special powers in the power of attorney is supplied by the expression of the offended party’s will to see the author of the crime punished. This demonstration is implemented through the registration of occurrences, by filing their statement before the police authority, the victim’s judicial statement, etc. Representation is the victim’s wish that the perpetrator of a crime (whoever he may be) be punished. This desire can be expressed by the offended party in several ways, including through documents, as provided for in Article 39.
Lack of special powers in the power of attorney : It can be compensated with the record of the occurrence of the crime made by the victim and with his declarations recorded in the inquiry (RT 643/393).
Recipient of representation
The police authority: The representation is normally addressed to the police authority. If she reports the commission of a crime, it is up to the police authority to determine the opening of a police inquiry.
The promoter: The representation can be addressed to the promoter. If it is accompanied by sufficient evidence relating to the crime and authorship, the action may be filed regardless of the opening of a police inquiry (paragraph 5 of article 39). If the evidentiary elements provided by the representative are insufficient, the prosecutor must request the opening of a police investigation.
The judge: Once the representation is offered to the judge, if accompanied by sufficient evidence, the magistrate must forward it to the Public Prosecutor’s Office. If unaccompanied by evidence, it will be forwarded to the police authority (paragraph 4 of article 39).
Comments: Pursuant to the provisions of paragraph 1 of this article 39, the representation made orally or in writing, without the duly authenticated signature of the victim, his legal representative or attorney, will be reduced to term, before a judge or police authority, in the presence of the Ministry Public, when it has been addressed. This is a procedural rule. It suggests forms, formalities, procedures.
Non-compliance with its literalities does not result in any sanction. Thus, nothing prevents the judge from recommending the party to appear before the police authority; that the judge suggest authentication of the firm; that the police authority reduces it to term, even if it has been made in writing, with a notarized signature; that the Public Prosecutor’s Office itself reduce the term, etc.
Form and content of representation
Comments: Representation is the manifestation of the will of the victim or his representative in the sense that the perpetrator (even if initially unknown) of a crime submits himself to criminal prosecution. As Gilberto Niederauer Corrêa rightly argued, once the authority has been released, through timely representation, anyone who has committed or participated in the crime is investigated and sued, regardless of whether or not their name appears as represented (RJTJRS 106/76). The expression of will can be explicit or implicit. Form-free. The rules for the form of representation in this Article 39 are nothing more than suggestions by the legislator, whose non-adoption by the victim or his representative does not imply invalidity of the representation (of the expression of will). Thus, it represents the simple record of a police incident in which the opening of a police inquiry is required. It is also representation the testimony of the offended reporting the criminal fact and requesting the prosecution of its author.
Form of representation : No special form is required, it is enough that the victim’s will be expressed (RJTJRS 76/41). It does not require formalities, being sufficient the declarations that the father gives in the inquiry (RJTJRS 89/151) or the presentation of the daughter in the police station (RJTJRS 89/72) or the record of occurrence (RJTJRS 94/81 and 94/90).
Absence of indication of the name of the perpetrator : The representation authorizes the prosecution of whoever may have committed the crime, even if not named by name (RJTJRS 106/76).
Interpretation of the norms that regulate representation
Inapplicability of the king ‘s favor principle : See subtitle Interpretation of the norms that regulate representation in the title Private and Public Action Crimes . Distinction, in comments to article 24.