Art. 4 The judicial police will be exercised by the police authorities in the territory of their respective districts and will have as its purpose the investigation of criminal offenses and of their authorship. (Wording given by Law No. 9,043, of 5.9.1995)
Single paragraph. The competence defined in this article shall not exclude that of administrative authorities, who by law are entrusted with the same function.
From Article 4 to 23, when citing refer to: MEDEIROS, Flavio Meirelles. Code of Criminal Procedure Commented. https://flaviomeirellesmedeiros.com.br : 2019
or
Medeiros, Flavio Meirelles. From the police inquiry. Porto Alegre: Lawyer’s Bookshop, 1994.
Survey history in Brazil
The inquiry in Brazilian history: The Code of Criminal Procedure of 1832 referred to the Chief of Police, but not to an inquiry. Article 6 said that there will be a Judge of Law in each Comarca: in populous Cities, however, there may be up to three Judges of Law with cumulative jurisdiction, one of them being the Chief of Police . Nine years later, the Criminal Procedure Code underwent significant reforms with the advent of Law n. 261/1841. In each municipality of the Court and in each Province it was determined that there was a Chief of Police, with delegates and sub-delegates appointed by the Emperor. All police authorities were subordinated to the Chief of Police. Chiefs of Police were chosen from among judges and judges. The delegates and sub-delegates, between judges and citizens. They were all “removable” (transferable) and obliged to accept the position. Article 4 gave the Chiefs of Police and delegates the most diverse attributions. The embryo of the police investigation in Brazil is found in paragraph 9 of article 4 of Law n. 261/1841 : It is incumbent upon the Chiefs of Police in the entire Province and at the Court, and their Delegates in the respective districts: To forward, when they deem convenient, all the data, evidence and clarifications that they have obtained on a crime, with an explanation of the case and its circumstances , to the competent Judges, in order to form the guilt . Subsequently, Law no. 2033/1871 amends several provisions of procedural legislation. Finally, Decree n. 4.824/1871 , regulating Law n. 2033/1871, instituted and standardized the police inquiry ( articles 38 to 44 ). Pursuant to Article 42, the police inquiry consists of all the steps necessary to discover the criminal facts, their circumstances and their perpetrators and accomplices . Article 38 already provided for the duty to act in the event of receipt of news of a crime, taking all necessary steps to verify the existence of the same crime, discovering all its circumstances and the offenders . Article 39 dealt with the direct examination of the corpus delicti, examinations and searches for the apprehension of instruments and documents. Currently, the investigation is regulated by the Code of Criminal Procedure in force (Decree-Law n. 3.689/1941). There are those who ask: how come some decrees or decree-laws have the force of law? At the time they were published, they were valid as law and, consequently, were accepted by the Federal Constitution as law. It is the explanation why some administrative penalties (fines, for example) are still applied today based on decrees published in the past, without violating the principle of legality.
Doctrine
Fábio Konder Comparato: The Judiciary in Brazil . conteudo.imguol.com.br
Luiz Melíbio Uiraçaba Machado : Evolution of the criminal procedure code: round table at the institutional memory policy and historiography seminar. jrs.jus.br .
Marco Aurélio Nunes da Silveira: The Current Inquisitorial Culture and the Authoritarian Origin of the Brazilian Code of Criminal Procedure . emerj.tjrj.jus.br.
Rogerio Schietti Cruz: Punishment in Imperial Brazil . metajus.com.br.
Renata Moura Tupinambá: The pillars of the 1941 Criminal Procedure Code and its incompatibility with the 1988 Federal Constitution . Legal Content.
Roberth Alencar : It is necessary to modernize the police investigation . Criminal Science Channel.
Thiago Cabral: The roots of authoritarianism in the 1941 Criminal Procedure Code . Criminal Science Channel.
Administrative nature of the investigation
Inquisitorial administrative procedure: Regarding its legal nature, the inquiry is classified as an inquisitorial administrative procedure. It is not the geographic position of norms in legal texts that identifies their nature. The norms are only of criminal procedure when they effectively regulate the criminal procedural activity. The regulatory norms of the police investigation contained in the CPP do not regulate the criminal procedure. They do govern the procedure of an administrative body, the police, an eminently administrative activity. Hence, the CPP norms that regulate the police investigation have an administrative nature.
Consequences of the norms being administrative: Since the CPP norms that regulate the police investigation are administrative, they must be known and interpreted in the light of administrative law. This is what is done below in the title Administrative Law applied to the investigation , in comments to this Article 4.
Legal nature of the acts performed by the police authority: Article 2 of Law n. 12,830/2013 provides that the functions of the judicial police and the investigation of criminal offenses carried out by the chief of police are of a legal nature, essential and exclusive to the State . Correct the legal provision. The acts performed and functions exercised by the delegate have a legal nature. because they produce legal effects. The acts performed are acts of administrative law, they have an administrative nature, therefore, the function is administrative. The chief of police is subject to the application of rules of criminal procedure, he can request and pursue their application, but he personally does not apply them. It is the judge who applies the procedural norm; the delegate executes, which configures the act of administration. We give an example: the delegate requires telephone interception (application of procedural rules). The judge grants (applies the norm). The delegate intercepts (performs the authorization, that is, an administrative action). Finally, jurisdictional and procedural acts are the responsibility of the judge. Legal acts of an administrative nature, by the police authority. There is no jurisdictional act practiced by the police authority, since only those who have jurisdictional power can practice a judicial act. Not even when the police chief releases the prisoner in flagrante delicto on his own (because he understands that the flagrante delicto or the crime is not characterized), there is no exercise of jurisdiction, since this arrest has a precautionary-administrative nature.
Inquisitive nature of the inquiry: The police inquiry is a typically inquisitive administrative procedure. It does not follow a certain rite. His acts do not follow one another in a preordained sequence. The discretionary power of the chairman of the investigation, the chief of police, is comprehensive. Defense is limited. Ditto the contradictory. The police chief has broad powers to investigate the facts, determining the steps he deems necessary. Articles 20 and 21 of the CPP, which deal with the secrecy of the investigation and the incommunicability of the accused, mark the inquisitive feature of the police investigation. There are those who maintain that the investigated person does not have rights, he only has guarantees, which is even, albeit implicitly, the jurisprudential inclination. It is a mistake, as we will demonstrate in comments on Article 6 . The investigated person has rights, and must pursue them, including the right to provide evidence through data and telephone interception with judicial authorization and assistance from the police authority. The evidence instruments available to the administrator must be used both to demonstrate guilt and to prove innocence, that is, they lend themselves to seeking the truth.
The purpose of the inquiry is the search for the truth
The direct purpose of the inquiry is to investigate the news of a crime: Firstly, it should be noted that the statement that the purpose of the police inquiry is to provide evidentiary elements so that the Public Ministry can initiate criminal proceedings is not correct. This view has two very serious defects: one of partiality and the other of undermining the autonomy of the police authority. It is a partial view because it assumes that the investigated person is guilty. It undermines the autonomy of the police authority, whose function is not to provide subsidies for the prosecution with the investigation, but rather to investigate the facts to discover the truth. Even, it should be noted, the text of the law is clear, since article 4 of the CPP says that the police The purpose of the judiciary will be to investigate criminal offenses and their authorship . This norm, properly interpreted, as we do below, means seeking the truth regarding the news of a crime.
Inquiry that is limited to ascertaining materiality and authorship is incomplete: Article 4 of the CPP is imperative in stating that the judicial police will have the purpose of investigating “criminal offences” and their authorship . Despite the literality of the expression “criminal infractions” contained in the device, there are still those who maintain that the investigation has the exclusive purpose of demonstrating the occurrence of materiality and respective authorship. “To investigate criminal offences” means to investigate crimes, which, as is known, do not end with the typical fact, also covering the unlawfulness and culpability of the conduct. In the real world, crime cannot be sliced up. To fractions, it does not exist. The police inquiry, in order to be considered complete, must also investigate the circumstances relating to the guilt of the accused, that is to say, the imputability, the potential awareness of unlawfulness and the enforceability of another conduct. The inquiry cannot be limited to ascertaining the typical fact and authorship. If there is a possibility that the investigated person acted under the protection of an exclusion of anti-legal or culpability, it must be investigated exhaustively, so that it is confirmed or not. The partially conducted police investigation is of no use. It only leads to a useless procedural activity, which could be, if the evidentiary elements were not partially collected, saved with a substantiated filing order. A formally perfect, but unilateral inquiry falls to the ground at the beginning of the procedural instruction phase. But not always. And that’s when injustices occur with the condemnation of innocent people. The investigation produces a set of evidence that may, depending on a number of factors, influence the judge’s conviction. Therefore, the responsibility for its manufacture is very great. Not only when it comes to ensuring the security of society, but also the fate of citizens and those who depend on them. And that’s when injustices occur with the condemnation of innocent people. The investigation produces a set of evidence that may, depending on a number of factors, influence the judge’s conviction. Therefore, the responsibility for its manufacture is very great. Not only when it comes to ensuring the security of society, but also the fate of citizens and those who depend on them. And that’s when injustices occur with the condemnation of innocent people. The investigation produces a set of evidence that may, depending on a number of factors, influence the judge’s conviction. Therefore, the responsibility for its manufacture is very great. Not only when it comes to ensuring the security of society, but also the fate of citizens and those who depend on them.
Direct, indirect and remote purposes of the police investigation: The direct purpose is, according to article 4 of the CPP, the investigation of criminal offenses and their authorship, that is to say, to investigate the news of a crime that comes to the attention of the police authority. This news may or may not be a crime. The inquiry aims to determine the real truth. Or rather, to get as close as possible to the real truth, given that the real truth is unattainable. It is up to the police authority to collect as many evidentiary elements as possible in order to be able to establish, based on them, narratives and their respective probabilities. It is the probabilities of the possible versions that will authorize, or not, the necessary conviction for prosecution in court. And, by the way, the indirect purpose of the police investigation is to provide subsidies for the promotion of criminal action. The remote purposes of the police investigation are confused with those of criminal proceedings. They are criminal law enforcement (to convict or to recognize innocence), the defense of society,
Doctrine
Henrique Hoffmann Monteiro de Castro: The Judiciary Police’s mission is to seek the truth and guarantee fundamental rights . Higher School of Police .
Object and principles
Object of inquiry: It is identical to that of the criminal procedure: the determination of the substantial criminal legal relationship that binds the investigated person to the State. It is the individuation of the legal relationship of criminal law that binds the State to the investigated. It can be either the relationship in which the active subject is the State that has the right to punish and the passive subject is the investigated with the obligation to submit to the penalty; or another possible relationship, in which the active subject is the investigated holder of the right not to be punished (since he has not committed a crime) and the taxable subject is the State with the obligation to ensure it. This is the object of the inquiry: to determine which of the two relationships exists in the face of a concrete fact. The police investigation and indictment are justified on the basis that, with the commission of a crime and reasonable evidence of authorship, there arises, in relation to a given person, doubt about the legal relationship of criminal law that binds it to the State. The inquiry, similarly to the process, aims to remove this doubt, that is, to establish whether the existing right is to punish or not to be punished, that is, to determine who is the active subject of the legal relationship of substantial law.
Principles of criminal procedure in force in the investigation: In addition to the principles of administrative law that regulate it, the investigation is also guided by some of the principles in force in criminal proceedings. This circumstance is due to the fact that the police investigation has the same object as the criminal procedure: the determination of the substantive legal relationship. In this way, the procedural principles originating from the unavailability of the object of criminal proceedings also apply to the police investigation. They are the principles of legality (in the face of the commission of a crime, the investigation is inevitable); of real truth; of officialdom (the investigation is handed over to a State body, the police); the official impulse (the chief of police must move the investigation until its end); and the unavailability of the investigation itself (the chief of police cannot decide to close the investigation – article 17 of the CPP ).
Reason for having the same object and the existence of principles in common: The circumstance that the investigation has the same object (unavailability of the procedural legal relationship) and has some principles in common with the criminal procedure has its origin in the Federal Constitution. The unavailability of the object of the process , that is, of the substantive legal relationship, is based on Articles 5, caput , and 144, caput of the CF. The first device referred to guarantees to all Brazilians and foreigners residing in the country the inviolability of the “right to life, liberty and security”. Article 144 of the CF , in turn, says that public security is the duty of the State, the right and responsibility of all, being exercised for the preservation of public order and the safety of people and property. The state’s duty to punish the guilty and ensure the freedom of the innocent stems from these devices. It is the duty to “ensure public safety”. It is the duty of “not having the legal relationship of criminal law”. The duty to punish criminals and ensure peace and quiet for the honest citizen. This “principle of constitutional security” is implicit in the substantive legal relationship of criminal law. And this relationship, being unavailable, will serve as the basis for some principles of criminal procedural law. It will also serve as a basis for police activity. What is inquisitive about the criminal process comes from the principle of constitutional security (the main norms of the process are the result of a negotiation between constitutional security and ample defense). What is inquisitive in the inquiry is based on these same constitutional devices.
Doctrine
Henrique Hoffmann Monteiro de Castro: Immovability is the delegate’s prerogative and the citizen’s guarantee . Higher School of Police.
Administrative law applied to the investigation
Principles that regulate police acts: The acts performed in the police investigation, which is an administrative procedure, are administrative acts. As such, under penalty of invalidity, they must obey the principles of legality , morality and impersonality . The act must be subject to the law. The moral. It is impersonal, that is to say, the act cannot depart from the public interest – the purpose principle. When a police act is carried out, in violation of any of these principles, it is subject to judicial control.
The duty to act: The powers of the police authority are powers-duties. There is no mere faculty to act, there is a duty to act. Faced with the suspicion of the practice of a typical fact, the duty to initiate an investigation arises. Faced with reasonable indications of authorship of a crime, the duty of indictment.
Binding and discretionary power: The police’s power is sometimes exercised in a binding manner (duty to open an investigation, for example). However, generally, given the specific needs of police activity, power is discretionary, subject only to linked elements of the administrative act (competence and purpose), and remaining free as to convenience, opportunity and content.
Hierarchical, disciplinary and regulatory powers: The hierarchical power exercised by the police authority, the police chief, is exercised in relation to police agents with greater rigor than in other administrative bodies. Its determinations must be complied with, unless manifestly illegal ( Article 5, II of the Federal Constitution ). The relapsed servant may be guilty of the crime of prevarication ( Article 319 of the Penal Code – CP ). Disciplinary and regulatory powers are also stricter in this sphere. In addition to being eminently discretionary, as noted, the police power is self-executing and endowed with coercion.
Revocation and annulment of acts: The acts of the investigation can be undone due to illegality (through annulment) or considerations of merit (through revocation). It is the control of the legality and merits of administrative acts, which can be carried out by the police authority itself.
Administrative appealability: It is the principle of appealability of administrative decisions. Such appeal is addressed to the secretary of security or the chief of police, and has only return. In the case of an investigation that is being processed before the Federal Police, the appeal is directed to the regional superintendent of the Federal Police.
Distinction of the administrative process: It should be noted that the police investigation procedure is distinct from the administrative processes of granting, controlling or punitive, especially the latter. It’s not punitive. This is an investigative administrative process. It bears some resemblance to the administrative investigation ( article 143 of Law 8.112/90 ), but differs from it because there is no possibility of applying a penalty in the inquiry.
Control of acts by the Judiciary: The acts of the investigation are subject to double legality control. By the administration itself (by the police authority, who can annul illegal acts) and by the Judiciary. Judicial examination of the convenience or opportunity of the act is prohibited. It is possible to examine its legitimacy (conformity with the law, with morality and with the purpose). The illegitimate act practiced in the course of the investigation is subject to annulment by the Judiciary. Nothing prevents the Judiciary from examining discretionary acts to verify that the limits of authorized discretion have not been exceeded. The procedural instruments available to the judicial control of the investigation acts are the writ of mandamus, the habeas corpus and the unnamed precautions. Unnamed precautions are part of the judge’s general power of caution. This power is denied by the doctrine. We check it present. Everyone who participates in the procedural relationship, directly or indirectly, is subject to it. Indirectly because, although he is not the subject of the procedural legal relationship, he is, with his behavior, producing effects in the process. On the general power of caution, see the heading Listing merely exemplifying and general power of caution of the criminal judge in the subheading Rol exemplifying or exhaustive? The general power of caution of the criminal judge of the title Arrolamento merely exemplifying and general power of caution of the criminal judge, in comments to article 319.
Doctrine
Gustavo de Mattos Brentano: The application of the principle of insignificance by the Chief of Police . Criminal Science Channel.
Rogério Pacheco Alves: The General Power of Caution in Criminal Procedure. core.ac.uk
Video
Flavio Meirelles Medeiros: The criminal judge has a general power of caution .
police functions
Judicial police and security police: The so-called security police are preventive police. It is the activity of the police whose purpose is to prevent crimes from being committed. It is exercised by the military police, which are responsible for ostensible police and the preservation of public order, in accordance with the provisions of paragraph 5 of article 144 of the Federal Constitution.. The name judicial police is reserved for the police function whose scope is to investigate criminal offenses and authorship. Once the infractions have been determined, the evidentiary elements will be forwarded to the official prosecution body so that it can initiate criminal proceedings. The judicial police is repressive. It is exercised by the Federal Police and the civil police. Start where the security police failed. While the latter aims to prevent the commission of crimes, the former aims at investigating crimes that could not be prevented by the security police.
State and federal judicial police: The Federal Police, under the terms of article 144, first paragraph and its items of the Federal Constitution , is intended to investigate criminal offenses against public and social order or to the detriment of goods, services and interests of the Union or of its autarchic entities and public companies, as well as other infractions whose practice has interstate or international repercussions and requires uniform repression; repress illicit traffic in narcotics and related drugs, smuggling and embezzlement; carry out maritime, airport and border police functions; and also exercise exclusively the functions of the Union’s judicial police. As for the civil police, in the words of paragraph 4 of the same provision Constitutional law, directed by career police chiefs, are responsible, subject to the competence of the Union, for the functions of judicial police and investigation of criminal offenses, except military ones. The competence of the civil police is, therefore, residual.
Criminal offenses with interstate or international repercussions: Pursuant to Law no. 10,446/2002 , and in accordance with item I of § 1 of art. 144 of the Constitution , when there is interstate or international repercussion that requires uniform repression, the Federal Police Department of the Ministry of Justice may, without prejudice to the responsibility of the public security agencies listed in art. 144 of the Federal Constitution, in particular the Military and Civil Police of the States, to investigate, among others, the following criminal offenses: I – kidnapping, false imprisonment and extortion through kidnapping (Articles 148 and 159 of the Penal Code), if the agent was impelled by political motivation or when practiced due to the public function performed by the victim; II – formation of a cartel (Law No. 12,529/2011); III – relating to the violation of human rights, which the Federative Republic of Brazil has undertaken to repress as a result of international treaties to which it is a party; IV – theft, theft or reception of cargo, including goods and values, transported in an interstate or international operation, when there is evidence of gang activity in more than one State of the Federation; V – falsification, corruption, adulteration or alteration of a product intended for therapeutic or medicinal purposes and sale, including over the internet, deposit or distribution of the counterfeit, corrupted, adulterated or altered product (art. 273 of CP); VI – theft, theft or damage against financial institutions, including bank branches or ATMs, when there is evidence of criminal association activity in more than one State of the Federation; VII – any crimes committed through the world wide web that disseminate misogynistic content, defined as those that propagate hatred or aversion to women. Whenever there is interstate or international repercussion that requires uniform repression, the Federal Police Department will investigate other cases, provided that such action is authorized or determined by the Minister of Justice.
Doctrine
Guilherme Nucci: Public safety: everyone’s duty
Márcio Adriano Anselmo: It is necessary to discuss the police investigation without prejudice or rancor . Conjure
Ruchester Marreiros Barbosa: The materially constitutional and jurisdictional role of the police chief in the light of human rights treaties and documents . jus.com.br.
Ruchester Marreiros Barbosa: Understand the difference between investigative police and judicial police . Criminal Science Channel .
Jurisprudence
Chief of the civil police must be delegates who are members of the career: The choice of the chief of the state civil police must fall on delegates who are members of the respective career ( ADI 3.038/SC, rel. min. Marco Aurélio, judged on 12-11-2014, judgment published in the DJE of 12-2-2015 – Bulletin 771, Plenary).
The powers of the Federal Police are not to be confused with the constitutionally established rules of jurisdiction for the Federal Court (arts. 108, 109 and 144, §1°, of CF/88), and it is possible that an investigation conducted by the Federal Police is prosecuted before the state court. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).
Judgments:
RHC 066741/SC, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/20/2016, DJE 09/30/2016
RHC 068900/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/02/2016, DJE 08/10/2016
RHC 057487/RS, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 06/07/2016, DJE 06/17/2016
RHC 066008/BA, Rel. Minister Maria Thereza de Assis Moura, judged on 02/16/2016, DJE 02/24/2016
RHC 050011/PE, Rel. Minister Sebastião Reis Júnior, judged on 11/25/2014, DJE 12/16/2014
HC 116375/PB, Rel. Justice Jane Silva (TJ/MG Judge), judged on 12/16/2008, DJE 03/09/2009
The survey is not essential
Inquiry is not essential for filing a complaint: In several provisions of the CPP, it is possible to verify that an inquiry is not essential for filing a complaint. It is correct that it should be so. The survey contains evidentiary elements. If other documents fulfill the same purpose, there is no reason why they cannot serve as a basis for initiating criminal proceedings. Article 12 of the CPP says that the investigation will accompany the complaint whenever it serves as a basis for it (which means that it is not always the investigation that accompanies the complaint). Article 28 deals with the possibility for the Public Prosecutor’s Office to request the archiving of the investigation or any other piece of information . Article 39, paragraph 5, waives the inquiry if with the representation elements are offered that enable the promotion of criminal action. Article 40 deals with records or papers that prove crimes and says that judges can send them to the Public Prosecutor’s Office for examination and possible filing of a complaint. Article 46, paragraph 1, says that if the Public Prosecutor’s Office dismisses the inquiry , the deadline for filing the complaint is counted from the date of receipt of the representation.
non-police inquiries
Other investigations: The sole paragraph of article 4 reserves the competence of other administrative authorities to prepare the investigation with the purpose of providing evidence for the filing of criminal proceedings. They are not police investigations, but non-police investigations with the same objective as those carried out by the police: to provide evidence for the filing of criminal proceedings. Professor José Antônio Paganella Boschi lists: the IPM (Military Police Inquiry), provided for in the Code of Military Criminal Procedure; the Civil Inquiry of Law n. 7,347 , of June 24, 1985, chaired by the Public Ministry; the CPIs (Parliamentary Committees of Inquiry), with constitutional grounds ( article 58 of the CF ), dealt with in Law n. 1,579, of March 18, 1952; the inquiry provided for in STF Precedent 397 ( also see jurisprudence subsequent to the publication of the Precedent ), which is the responsibility of the Chamber of Deputies and the Federal Senate in the event of a crime committed on their premises; the investigation presided over by the Court, as established by the Organic Law of the National Judiciary ( Complementary Law nº 35, of March 14, 1979, article 33, sole paragraph ), in the case of involvement of a judge; the investigation presided over by the Attorney General of Justice provided for in the Organic Law of the Public Ministry ( Law n. 8.625, of February 12, 1993, article 41, sole paragraph) in case of involvement of a member of the State Public Ministry; chaired by a Member of the Public Prosecutor’s Office designated by the Attorney General of the Republic in the case of involvement of a member of the Federal Public Prosecutor’s Office ( article 18, sole paragraph, of Complementary Law No. 75/93 ) (BOSCHI, José Antônio Paganella. Criminal action: complaint , complaint and amendment . Rio de Janeiro, AIDE, 2002). In such cases, where a member of the MP or a judge is involved in a police investigation, according to the aforementioned laws, the investigation records must, by the police authority, be immediately sent to the competent authority to preside over them, that is, the Court, the public prosecutor -General of Justice and the Attorney General of the Republic, as the case may be.
STF investigations: See title Crimes against the STF and its competence to investigate and arrest in comments to article 84.
Doctrine
Carlos Eduardo Rios do Amaral. Parliamentary Committee of Inquiry . Anadep.
Celso de Mello: State parliamentary investigation: the special commissions of inquiry . Justice.
Suspicion of the police authority
Suspicion of the police authority: Article 107 prohibits the opposition of suspicion by the police authority in the acts of the investigation. Determines that she should declare herself suspect when there is a legal reason. Therefore, if any of the hypotheses of articles 252 or 254 are present , the delegate must declare himself a suspect in order to preside over the investigation. The intention of the legislator, in article 107, is to shield the police authority against any judicial measure that seeks to remove it based on suspicion. We understand that investigations presided over by the father of the victim , the brother of the victim , the victim of the crime are inadmissible . Process based on an investigation chaired by a suspect delegate, who refused to declare himself as such, failing to comply with his legal obligation, is a process devoid of just cause. It is important to consider that there are tests that are carried out in the investigation phase that cannot be renewed in court. Only the suspect will have presided over them. The suspicion of the police authority does not imply nullity of the process, but in the absence of just cause. On the subject, see our comments on Article 107 of the CPP . The suspicion of the chief of police extends, by analogy, to the police clerk assigned to the investigation ( article 274 of the CPP ).
Jurisprudence
Suspicion of the police authority does not annul the process: The suspicion of police authority verified in an investigation is not a reason for the annulment of the criminal process ( RHC 131.450, rel. min. Cármen Lúcia, judgment on 5-3-2016, DJE of 5-17 -2016 – Bulletin 824, Second Panel).
Expressions used in this device
Expressions “jurisdictions” and “competence”: This article 4, in the original wording of the CPP, stated that judicial police was exercised by the police authorities in the territory of their respective jurisdictions. Law nº 9.043/1995 replaced the expression jurisdictions with circumscriptions . He did well, since the police authority does not have jurisdictional power. The sole paragraph of Article 4 mentions the term competence . Is perfect. Themistocles Brandão Cavalcanti clarifies that functional competence, in administrative law, is the measure of power to perform a certain act or even omission on behalf of the State (CAVALCANTI, Theory of administrative acts. São Paulo, Revista dos Tribunais, 1973, p. 67).
The exercise of judicial police in another’s circumscription: The eventual exercise of judicial police in another’s circumscription is not prohibited, provided that there is repercussion on its own competence, according to Julio Fabbrini Mirabete, in comments to the present device (Mirabete, Julio Fabbrini. Code of Procedure Criminal Interpretation . 7th ed. Editora Atlas: 2000).
Doctrine
Ruchester Marreiros Barbosa: A natural delegate is the basic principle of proper criminal investigation . Higher School of Police.
Ruchester Marreiros Barbosa: Delegate can and should assess the conventionality of laws . jus.com.br.
Relations between the police and the public prosecutor
External control: Pursuant to article 129, item VII of the Federal Constitution , it is the institutional role of the Public Prosecutor’s Office to exercise external control of police activity. Law no. 8.625/93 (National Organic Law of the Public Ministry) does not deal specifically with the subject, however, according to article 80 , the norms of the Organic Law of the Federal Public Ministry apply to it. Complementary Law n. 75/93 (Statute of the Public Ministry of the Union), in article 3 and its items, argues that the Federal Public Prosecutor’s Office will exercise external control of police activity with a view to respecting the foundations of the Democratic State of Law, the fundamental objectives of the Federative Republic of Brazil, the informing principles of international relations, as well as the rights guaranteed in the Federal Constitution and the law; the preservation of public order, the safety of people and public property; the prevention and correction of illegality or abuse of power; the unavailability of criminal prosecution; the competence of the bodies responsible for public security. Seeking to regulate the issue, the National Council of the Public Prosecutor’s Office published resolution n. 20, of May 28, 2007 (Amended by resolutions nº 65/2011, 98/2013, 113/2014 and 121/2015). The Federal Council of the OAB filed a Direct Action of Unconstitutionality n. 4220 against this resolution, which is pending judgment (2019). According to the OAB, among other unconstitutionalities, the National Council of the Public Ministry does not have the power to regulate the matter, which must be dealt with by a complementary law, as expressly provided for in article 129, item VII of the CF . The lawsuit is pending judgment.
Requests from the judicial, ministerial and police authorities are to be fulfilled: It is incumbent upon the police authority to carry out the steps requested by the judge or the Public Prosecutor’s Office ( article 13, item II of the CPP ). Requisition, from the Latin requisitio, means to require, demand, request. Those are your usual synonyms. In the legal order, this expression was introduced with a specific sense of order to be fulfilled. In law, in the tax area, the tax inspector can request the police force when in the exercise of his duties; in administrative law, private goods or services can be requested in an emergency situation; the judge may request the prisoner to be present; the police chief may request documents necessary for the investigation of crimes and respective authorship, as expressly provided for in paragraph 2 of article 2 of Law no. 12,830/2013. The request is order. This is not a simple request. What characterizes an order is not the circumstance of whether or not there is a hierarchy between those who give and those who receive it. There is no hierarchy between administration and private individuals. There is no hierarchy between the judge and the servant of the direct or indirect public administration. There is no hierarchy between the prosecutor and the delegate. What differentiates a simple request (which can be denied) from an order is that the latter, unlike the former, is legally foreseen. When the law determines compliance with the requirement, it is an order. Thus, requisitions are not simple requirements, they are orders (and the duty of obedience is in the very technical meaning of the word), commands to be fulfilled. They should only not be obeyed if they are flagrantly illegal. In case of flagrant illegality, even the court order must not be complied with by the bailiff. We give an example, and for that, the absurd hypothesis: the arrest warrant determines that the bailiff arrest and, subsequently, kill someone. In conclusion, being manifestly illegal, the request must not be complied with, as no one is obliged to do or refrain from doing anything except by virtue of the law (article 5, item II of CF ). Obedience to a manifestly illegal order does not exclude guilt for the crimes committed ( Article 22 of the Penal Code ). On the other hand, the unmotivated non-fulfilment of what was requested does not typify disobedience, since disobedience is a crime committed by individuals. The crime of prevarication may eventually be characterized, which consists of delaying or failing to perform, improperly, an official act, or performing it against the express provision of the law, to satisfy personal interest or feelings ( Article 319 of the Penal Code ). .
Improper order of indictment: With regard to the indictment, it is a private act of the police authority. Any order or request for an indictment addressed to the police authority is inappropriate. It is an act that concerns the technical analysis of the police chief. Law no. 12.830/2013, in its article 2, paragraph 6, stipulates that the indictment, a private act of the chief of police, will be given by reasoned decision, through technical-legal analysis of the fact, which must indicate the authorship, materiality and its circumstances.
Involvement of a prosecutor or judge in an investigation and measures: When, during the investigation, there is evidence of the commission of a criminal offense by a prosecutor or judge, the police authority will immediately send, under penalty of liability, the respective records to the attorney general of Justice or Attorney General of the Republic or Court or special body competent for the trial, who will be responsible for proceeding with the investigation. See Organic Law of the National Judiciary ( Complementary Law nº 35, of March 14, 1979, article 33, sole paragraph ), in case of involvement of a judge; Law n. 8625, of February 12, 1993, article 41, sole paragraph), in case of involvement of a member of the State Public Ministry; when a member of the Federal Public Prosecutor’s Office is involved, see Article 18, sole paragraph, of Complementary Law No. 75/93 .
Doctrine
Afrânio Silva Jardim: External control of police activity by the Public Ministry – video.
Francisco Sannini Neto: Indictment: private act of the chief of police . jus.com.br.
Francisco S. Neto: Police indictment and its consequences . Criminal Science Channel.
Fabio Lobosco : The legal inconsistency of the indictment in a crime of lesser offensive potential . Crumbs.
Leonardo Marcondes Machado : The police indictment cannot be a surprise act! Conjure
Marcio Adriano Anselmo: The act of indictment must be duly substantiated . Higher School of Police.
Rafael de Carvalho Missiunas: Control of police activity by the Public Ministry . Conjure
Jurisprudence
Indictment as an exclusive attribution of the police authority: The magistrate cannot request the indictment in a criminal investigation. That’s because the indictment is an exclusive attribution of the police authority ( RHC 47.984-SP, Justice Judge Jorge Mussi, judged on 4/11/2014. – Newsletter nº 552 ).
Duty of impartiality of the police authority and partiality of the investigation
The police authority has a duty to be impartial: Police Chief is a noble profession. Its mission is constitutional. It stems from the constitutional principle of security that delinquents suffer repression and non-infringers of criminal law can safely enjoy their freedom. The object of the investigation, for which the police authority is responsible, is based on Articles 5, caput , and 144, caput of the Federal Constitution . The first device guarantees to all Brazilians and foreigners residing in the country the inviolability of the right to life, liberty and security. Article 144 of the CF, in turn, says that public security is the duty of the State, the right and responsibility of all, being exercised for the preservation of public order and the safety of people and property. The state’s duty to punish the guilty and ensure the freedom of the innocent stems from these provisions. It is the duty to ensure public safety . It is the duty not to dispose of the legal relationship of criminal law . The duty to punish criminals and ensure peace and quiet for the honest citizen. This principle of constitutional security is implicit in the substantive legal relationship of criminal law. The object of the investigation is a legal relationship of criminal law that binds the State to the investigated person. There is in the survey: a) theu a legal position of criminal law in which the State occupies the position of active subject, and the subjective right is to punish with the obligation of the investigated person to submit to the penalty; b ) or a legal relationship of criminal law in which the investigated occupies the position of active subject, and the subjective right is that of freedom with the obligation of the State to respect and assure it.The inquiry aims to determine who is the active subject of the relationship, aims to identify the substantive legal relationship that pre-exists him, collecting the maximum amount of evidence, whether in the sense of innocence or guilt. Impartially, since the purpose of the investigation is not to demonstrate crimes and authorship, but to clarify the real truth, or better, to try to get as close as possible to the real truth, since the real is unattainable. For this reason, the survey cannot be designed to confirm a certain version. Evidential elements, even if contrary to the thesis in formation, cannot be rejected, discarded. Any contraindications must be attached to the file. It would characterize concealment of evidence. Even though the inquisitive method will not help, the police authority should strive to remain impartial.
Evaluation of the survey system: The survey system is not bad. His inquisitoriness, which is necessary for the collection of evidence, is compensated by the wide procedural defense. Adversary, with two partial parties and one equidistant impartial, is inefficient for investigation (to discover new facts), but it is the most appropriate system for approaching the truth (to determine whether or not there is proof of the accusatory hypothesis). One is ideal for investigating, the other for testing the hypothesis suggested by the investigation. The Brazilian criminal repression system is composed of two very distinct phases. In the first stage, that of the inquiry, the evidence is collected. In the second, that of the process, the evidence is put to the test. In the first phase, the inquisitive method predominates. In the second, the accusatory, the contradiction and the broad defense. One phase complements the other. It is the way we found to carry out the two fundamental and constitutional principles that must prevail in the procedural repressive system: that of security and that of guarantee. No, we definitely don’t have a bad system. We have no reason to copy alien systems. We need to stop looking outside and wondering what new system we are going to adopt. Our system is better than theirs.
In the inquiry system, the investigator is not the accuser: In the inquiry, it is not the investigator who will accuse, which represents the guarantee that there will be no selection of evidence. The system in which the investigator/inquisitor is the accuser is the most unfair, arbitrary and biased. When it is the investigator who accuses: first , he does not have the slightest psychic condition, balance and distance to assess the appropriateness of bringing the criminal action, as he is impressed with the evidence he himself collected; two , he is a card player who shuffles them privately and openly, choosing at the beginning of the game which will be his and which will be those of the opposing party; to three, according to jurisprudence, the evidentiary elements of the investigation, when confirmed by other elements of the procedural instruction, are valid for the formation of the judge’s conviction, that is, the material collected, selected and organized by the accuser is considered as evidence. If to this we add negotiating power to the accusation, we have the figure of the inquisitor/accuser/negotiator. It would be the definitive end of the meaning of guarantee in the national penal repressive system. The criminal repressive system, in order to function efficiently and properly, presupposes a balance between the bodies in charge of criminal repression: the police, the public ministry and the judiciary. When one of these repressive powers stands out, there is an imbalance between the powers due to a lack of control of the system of checks and balances. There is no separation of powers without separation of state functions. Consequence is agency and abuse.
The inquiry is partial: Evidence is the evidence or set of evidence capable of authorizing the conviction that a fact exists, existed or will exist. The survey contains a set of evidence. This evidentiary complex commonly tends to be contrary to the criminal interests of the investigated person, inclined to partiality. It’s a rule of experience. It seems contradictory to state first that the police authority must be impartial and, secondly, to assert that the police investigation is intended for partiality. It seems illogical. However, there is logic. Commenting on the police chief, we were talking about the duty to be . Now, we take care of being. It is necessary to distinguish the ideal from the real. From the technical-legal requirement of reality. And it is necessary to be very clear: we are not trying to give any critical focus to the partiality of the police investigation. He is partial because reality prevents him from not being. To investigate, to gather evidentiary material concerning a version, the best method is the inquisitive one. It pursues an objective, the demonstration of a fact, hypothetically conceived in the news of the crime, and the respective authorship. It is a focused, directed march, practically signposted, and that does not admit deviations. Its quality is that it is the best known method for obtaining evidence of a given version or narrative. Its defect, its distinctive feature, is the partiality and legal uncertainty that this represents. And there’s no avoiding it, the insecurity. The best, and this aspect is fundamental, what must be done is to recognize it. Denying the partiality of the information contained in the inquiry is the revelation of the most absolute lack of understanding and lack of knowledge of the operation of the police inquiry and, consequently, a demonstration of complete inability to interpret the evidence in criminal proceedings. We explain the reasons for the partiality of the survey (some among others): 1 – in this method, the investigator needs to establish an initial hypothesis (a script, a version) and, subsequently, go in search of evidence of the created narrative; 2 – contraindications are disposable setbacks, as they deviate from the objective; 3 – self-love and vanity come into play, overvaluing evidence that confirms the narrative and undervaluing counterintelligence, iter criminis ; 4 – Police officers hardly ever had colleagues who fell in the fight against crime, and this harsh and sad reality ends up making them less receptive to the possibility of innocence of those being investigated; 5 – administration statistics, which measure “the success of police officers” according to the number of inquiries resolved, that is, the index of indictments; 6 – It is easier and faster to limit oneself to investigating the materiality and authorship, and dismissing the investigation as closed, than to investigate the “criminal infraction” (including culpability and unlawfulness), as determined in article 4 of the CPP . Finally, it is important to emphasize the knowledge that the investigation is partial so that due value can be given to the set of indicative information it contains. recognize the bias a priori of the evidentiary elements of the investigation is the first step to correctly evaluate the body of evidence at the end of the process with a view to sentencing. As we explained – and we come back to the point to be clear – bias is a variable. To assess this measure, the events portrayed in the survey and in the process need to be contextualized, paying special attention to the interests of the various people involved in it.
Doctrine
Giovani Bavaresco and Ruchester Marreiros Barbosa: Delegate must enforce the guarantee of defense in the criminal investigation . Higher School of Police.
Márcio Adriano Anselmo: It is necessary to discuss the police investigation without prejudice and resentment .Conjur.
Ricardo Lewandowski: It is up to the three Powers to effectively curb abuses of authority . Conjure
Jurisprudence
The investigated party’s pretense of expressing a prior opinion on the MP’s request is unavoidable: The fact that the investigations of the inquiry are not carried out in adversary proceedings does not prejudice the exercise of full defense ( Inq 3.387 AgR, rel. min. Dias Toffoli, judgment on 15 -12-2015, judgment published in the DJE of 26-2-2016 – Bulletin 812, Second Panel).
Evidence value of the survey
It only lends itself to serve as a basis for the accusation: According to the first current, the police investigation has no probative value. It is an inquisitive procedure whose exclusive purpose is to provide elements of information to the prosecutor, so that he can initiate criminal proceedings. According to these authors, the inquiry only serves as a basis for the complaint or complaint, in fact, as article 12 of the CPP seems to confirm . Such absolute lack of probative value would result from the fact that the instruction must necessarily be contradictory, and the police investigation is purely inquisitive. It would also derive from the fact that the evidence to substantiate the conviction must be judicialized, using this expression in the sense that the evidence must be gathered by the investigating judge. Some eminent jurists are part of this current.
It has value if confirmed by judicialized evidence: For a second current, accepted by the vast majority of judicial decisions and by the most significant part of the doctrine, the constant evidence of the investigation lends itself to support the conviction, provided that it is confirmed by elements of evidence gathered at the procedural instruction stage. The authors who defend this understanding say that the evidence collected in the investigation is only valuable if confirmed by judicial evidence in the course of the process. As for the position that supports the possibility of conviction based exclusively on police evidence, there are practically no followers.
The second stream. Some aspects: The reason, no doubt, lies with the second current. The inquiry records, once annexed to the proceedings, and being available to the parties for contradiction, have indicia value as documents that they are. Individually, they do not provide proof, but if, together with the evidence contradicted in the procedural instruction, they authorize the conviction regarding certain facts, they can, in relation to them, provide evidence. When the defense denies hypotheses raised in the investigation, it is contradicting the inquisitive document. The contradictory principle is carried out with the following conditions: 1st – the party must be given the opportunity to state its reasons and to speak about those of the opposing party; 2nd – the party must be given the opportunity to speak about every element of evidence that enters the proceeding by act of the opposing party or the judge; 3rd – the party must be given the opportunity to bring evidence to the proceedings. The testimony contained in the investigation file is obviously not valid. as a testimony . Not only because it was not immediately contradicted, but also because it was provided without the presence of the defender. In the process, that testimony serves as a document containing a statement by a third party . It constitutes documentary evidence, as a document is any instrument that contains a manifestation of will or thought. It deserves whatever credit it has according to the rules of experience and, mainly, according to the circumstances of the concrete case (relationship of the witness with the accused, with the facts, with the context in general, etc.). It could be worth a lot. It can be worth absolutely nothing. It depends on the narrative that is built in the contradictory procedural instruction. This narrative built on the contradictory basis, and under the guarantee of broad defense, is what will expand, reduce or annul the evidentiary value of the investigation. In order to equate the probative value of the investigation and other evidence in the process, the correct concept of proof must always be borne in mind: evidence is the evidence or set of evidence capable of authorizing the conviction that a fact exists, existed or will exist.. There are three elements of the concept of proof: evidence, conviction and fact. But, notice and record: conviction is not an isolated element. To have it, there must be evidence capable of authorizing it . Conviction is therefore not subjectivism independent of the evaluator of the evidential context. It is conditional on the existence of authoritative evidence (according to the rules of experience, common sense and observation). It is the science of experience that decides what evidence is capable of authorizing conviction, a science that is best mastered by the most seasoned police chiefs, the most experienced magistrates, the most knowledgeable prosecutors and the most seasoned lawyers.
On the concepts of evidence and evidence: See the heading Evidence, conviction and proof in the subheading Unraveling the mystery of evidence in comments on article 155.
Expertise produced in the inquiry: See comments to item VII of Article 6 .
Video
Flavio Meirelles Medeiros: In every process, the evidence is indicative.
Doctrine
Aury Lopes Jr: Do the Inquiry’s nullities and illegalities contaminate the Criminal Procedure? Conjure
Aury Lopes Jr. and Alexandre Morais da Rosa: (un)conscious contamination of the judge and physical exclusion from the investigation . Conjure Aury Lopes, criminal lawyer down to the last strand of hair, and Alexandre Morais da Rosa, jurist and courageous magistrate, argue that the inquiry should not accompany the process, especially in the plenary of the jury. They claim that only by excluding the investigation from the case file will it avoid condemnation based on mere acts of investigation, at the same time that its endoprocedural function will be effective. While this does not happen – argue the writers -, the elements offered by the IP — with the exception of technical evidence and those produced through the incident of anticipated production (before the judge) — should not be valued in the sentence nor serve as a basis for a conviction , albeit under the fallacious cloak of “comparing with judicial evidence”.
Henrique Hoffmann Monteiro de Castro: “ Mere informativeness” of the police investigation is a myth . Conjure In this article, Henrique Hoffmann Monteiro de Castro highlights the probative value of the survey. He maintains that “persisting with the reductionist statement that the police investigation is a merely informative piece encourages unwary professionals not to worry about acting in the police phase, as it supposedly has no relevance to the outcome of the criminal process. And so acting the defense, when it opens its eyes in advance of the criminal prosecution, with the evidence duly produced, it may be too late for the adoption of any minimally effective defensive strategy”.
videos
Flavio Meirelles Medeiros: Nullities of the flagrante delicto provoking the illegality of the preventive
Jurisprudence
Evidential value of the survey : The statements contained in the inquiry, when consonant with the judicial evidence, have probative value (RJTJRS 116/71). The statements of knowledge before the police, in view of the inquisitorial form, are as valid as other extrajudicial statements, since they depend on the circumstances in which they were taken (TJRS – Ap. 684007032). It is not possible to draw up a condemnatory sentence without the evidence of the pre-procedural phase not being judicialized, submitted to the contradictory (TJRS – Ap. 685029399 and Ap. 690092432). The condemnatory decision whose support is the evidence, not reproduced in court, substantiated in the documents of the investigation, offends the constitutional guarantees of the adversarial system and the fullness of defense (STF – Lex 165/376). Inquiry acts affected by nullity may lose their probative value (RJTJS 90/159).
Lis pendens between investigations : It is admissible to investigate the same fact in a different location. The jurisdiction of the court must be assessed after establishing the existence of the crime attributable to the accused. Blocking is inadmissible because it is not possible to speak, conceptually, of lis pendens between investigations (RT 625/293).
The evidence initially produced in the inquisitorial sphere and re-examined in the criminal investigation, observing the contradictory and ample defense, do not violate article 155 of the Code of Criminal Procedure – CPP, since any irregularities that occurred in the police investigation do not contaminate the resulting criminal action. Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in EDcl in AREsp 1006059/SP, Rel. Minister Nefi Cordeiro, judged on 03/20/2018, DJE 04/02/2018
AgInt no AREsp 1168591/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/20/2018, DJE 02/28/2018
HC 381186/DF, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 09/26/2017, DJE 10/06/2017
AgRg in AREsp 609760/MG, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 03/21/2017, DJE 03/29/2017
HC 371739/PR, Rel. Minister Maria Thereza de Assis Moura, judged on 12/06/2016, DJE 02/02/2017
AgRg no HC 256894/MT, Rel. Minister Sebastião Reis Júnior, judged on 06/14/2016, DJE 06/30/2016
Expertise and documents produced in the inquisitorial phase are coated with probative efficacy without the need to be repeated in the course of the criminal action because they are subject to the deferred adversarial procedure. Source: Jurisprudence in theses (STJ). Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in REsp 1522716/SE, Rel. Minister Antonio Saldanha Palheiro, judged on 03/20/2018, DJE 04/05/2018
AgRg in AREsp 1032853/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 02/27/2018, DJE 03/07/2018
AgRg in AREsp 521131/RS, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/08/2018, DJE 02/21/2018
HC 413104/PA, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 02/08/2018, DJE 02/15/2018
AgRg in AREsp 814370/PE, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 09/21/2017, DJE 09/27/2017
AgRg in AREsp 312502/DF, Rel. Minister Felix Fischer, Fifth Panel, judged on 06/13/2017, DJE 08/01/2017
Pronunciation based exclusively on the investigation : Pronouncement based exclusively on elements collected in the police investigation is illegal ( HC 589.270/GO , Judge Sebastião Reis Júnior, Sixth Panel, unanimously, judged on 02/23/2021).
The Public Prosecutor in the investigation
Decision of the Federal Supreme Court: The Federal Supreme Court, in extraordinary appeal n. 593727 , established, in general repercussion, thesis summed up as follows: “The Public Prosecutor’s Office 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 by the State, always observing, by its agents, the hypotheses of constitutional reservation of jurisdiction and, also, the professional prerogatives with which Lawyers are invested in our Country (Law 8.906/94, article 7, notably the items I, II, III, XI, XIII, XIV and XIX), without prejudice to the possibility – always present in the democratic State of Law – of permanent judicial control of the acts, necessarily documented (Binding Precedent 14), practiced by the members of that institution ” .
Henrique Hoffmann and André Nicolitt: As Henrique Hoffmann and André Nicolitt write, “[…] in Brazil, the legislation wisely created different bodies to carry out the functions of investigating and prosecuting, thus avoiding the concentration of powers in the hands of the Public Ministry (which in some countries may investigate in addition to accuse) and the Judiciary Police (which in some nations can accuse as well as investigate). This is the express provision of Articles 129 and 144 of the Constitution, in addition to Law 12,830/13, Law 8,625/93 and Complementary Law 75/93, which places the MP as an institution for the prosecution and external control of the police. As we know, implied powers only exist in the silence of the Constitution. [3] Which is not the case, since the lack of investigative attribution by the MP was not a mere forgetfulness of the original constituent, which expressly rejected several amendments that would have given such power to Parquet. In this sense, the guarantee of being investigated only by the proper Judiciary Police authority, in respect for the principle of the natural delegate, [4] proves to be a true fundamental right of the individual. As important as the discourse of combating crime is, it does not have the power to authorize the subversion of the constitutional division of attributions. Utilitarian rage cannot throw away guarantees that were not conquered overnight” ( does not have the power to authorize the subversion of the constitutional division of attributions. Utilitarian rage cannot throw away guarantees that were not conquered overnight” ( does not have the power to authorize the subversion of the constitutional division of attributions. Utilitarian rage cannot throw away guarantees that were not conquered overnight” (Criminal investigation by the Public Ministry has limits – CONJUR ).
Guilherme Nucci: On the subject, professor and judge Guilherme Nucci it is expressed as follows: “The Federal Constitution was clear in establishing the functions of the police – federal and civil – to investigate and serve as an auxiliary body of the Judiciary Power – hence the name judicial police –, in the attribution of investigating the occurrence and authorship of crimes and criminal misdemeanors (art. 144). The Public Prosecutor’s Office has reserved ownership of the criminal action, that is, the exclusivity in filing it, except in the exceptional case reserved for the victim, when the criminal action is not brought within the legal period (article 5, LIX, CF). It should also be noted that art. 129, III, of the Federal Constitution provides for the possibility for the prosecutor to prepare a civil inquiry, but never a police inquiry. However, in order to conveniently equip the State’s official prosecution body, the Public Prosecutor’s Office was given the power to issue notifications in administrative procedures within its competence, requesting information and documents (which occurs in civil investigations or in any administrative process that investigates a functional violation of a member or employee of the institution, for example), to possibility of exercising external control of police activity (which does not mean replacing the presidency of the investigation, conferred on the career delegate), the power to request investigative diligences and the initiation of a police inquiry (which demonstrates that it does not have the attribution to initiate the inquiry and, yes, to request their training by the competent body). Finally, it is up to the Public Prosecutor’s Office, upon becoming aware of the commission of a crime, to request the establishment of an investigation by the judicial police, control the entire development of the investigative pursuit, request diligence and, in the end, form your opinion, choosing whether or not to denounce any person identified as the perpetrator. Ratifying this understanding, Law 12.830/2013 made it clear that it is up to the police chief to conduct the criminal investigation, through the police inquiry or other procedure provided for by law, with the aim of ascertaining the circumstances, materiality and authorship of the infractions penalties (art. 2). In the same light, Law 12,850/2013, dealing with organized crime, stipulated, in art. 2, § 7, the following: ‘if there are indications of the participation of a police officer in the crimes dealt with in this Law, the Internal Affairs Division of Police will initiate a police investigation and notify the Public Prosecutor’s Office, which will appoint a member to monitor the deed until its conclusion’. Soon, It is not up to the Public Prosecutor’s Office to preside over investigative acts, but only to accompany them. Therefore, the Public Prosecutor’s Office is not constitutionally guaranteed to carry out the criminal investigation alone, denouncing whoever it considers to be the author of a criminal offence, fully excluding the judicial police and, consequently, the healthy supervision of the judge. In addition, adapting the criminal procedure to the principle of legality, it is completely illogical that a state body (MP) can investigate criminally without a law that disciplines the subject.” (Nucci, Guilherme de Souza. the judicial police and, consequently, the healthy supervision of the judge. In addition, adapting the criminal procedure to the principle of legality, it is completely illogical that a state body (MP) can investigate criminally without a law that disciplines the subject.” (Nucci, Guilherme de Souza. the judicial police and, consequently, the healthy supervision of the judge. In addition, adapting the criminal procedure to the principle of legality, it is completely illogical that a state body (MP) can investigate criminally without a law that disciplines the subject.” (Nucci, Guilherme de Souza. Code of Criminal Procedure Commented . 13th. Ed. National Editorial Group: 2014). It should be clarified that Guilherme Nucci wrote the above words before the publication of the decision of the STF in extraordinary appeal n. 593727 .
Doctrine
Damásio de Jesus : Investigative Powers of the Public Ministry . Legal Content.
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.
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 .
Assistance from the intelligence agency to the State Public Prosecutor’s Office: It is legal for the intelligence agency to assist the State Public Prosecutor’s Office during criminal proceedings instituted to investigate serious crimes in the context of a criminal organization ( HC 512.290-RJ , Reporting Minister Rogerio Schietti Cruz, Friday Class, unanimously, judged on 08/18/2020, DJe 08/25/2020).
Resolution
Resolution No. 181, of August 7, 2017. Provides for the initiation and processing of the criminal investigation procedure in charge of the Public Ministry (PIC).
