Art. 40. When, in records or documents known to them, judges or courts verify the existence of a crime of public action, they will send to the Public Prosecutor’s Office the copies and documents necessary to file the complaint.
Crimes that come to the attention of judges
Measures: When judges – article 40 is applicable in any instance –, examining cases of any nature, become aware of the existence of a public action offense, they must, as established in article 40, send the copies and documents to the Public Ministry necessary to file the complaint. If the existing documents are not sufficient to support the criminal action, they must be sent not to the Public Ministry, but directly to the police authority.
Indictment: The request for an inquiry by the Public Prosecutor’s Office does not imply an obligation on the part of the police authority to indict. The indictment of a suspect will only be appropriate if the police authority concludes that there is sufficient evidence as to the crime and authorship. On the subject, see the subtitle Presuppositions of the indictment in the title Hearing the accused. Driving. Indictment (item V) , in comments to article 6.
Prevention and impediment of the judge: The application of article 40 does not imply prevention or impediment of the judge. This is the jurisprudential understanding.
Sending documents and illegal embarrassment: Sending documents from the judge to the police authority does not generate illegal embarrassment. There is a strong jurisprudential understanding in this regard. The basis used is that it is an act of an administrative nature. In our opinion, there is no illegal constraint because there is, in theory, no order to initiate an investigation. On the other hand, if documentation is sent accompanied by an express order to initiate an investigation, documentation devoid of evidence of crime or authorship, habeas corpus is evidently applicable . In this case, the coercive authority is the judge, and the filing must be made before the court.
