Art. 45. The complaint, even when the criminal action is exclusive to the offended party, may be amended by the Public Ministry, which will be responsible for intervening in all subsequent terms of the process.
https://www.youtube.com/embed/kLdz_xMubUo?feature=oembedThis video is repeated in articles 41, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, as it deals with all of them. Subjects: complaint, elements, power of attorney, indivisibility, waiver and pardon
amendment
Deadline: According to the provisions of paragraph 2 of article 46 , the deadline for amending the complaint will be three days, counted from the date on which the Public Prosecutor’s Office receives the records, and, if it does not issue a decision within the triduum, it will be understood – there is nothing to add, continuing in the other terms of the process.
Purpose: The purpose of the amendment is to correct or complete, amend, expand, complement the criminal complaint.
Inclusion of defendant: The prosecutor cannot, in addition, include defendant. It can, yes, launch a quota warning the plaintiff that the non-inclusion of any agent implies waiver of the right of complaint in relation to all. Next, the plaintiff must be seen, so that he can decide whether to include it or not.
View of all the terms of the process: Regardless of whether or not the amendment was made, the Public Ministry must intervene in all the terms of the private action. For this, he must be given a view of all procedural acts.
Nullity due to lack of intervention by the Public Ministry: The intervention of the MP is necessary to give effect to the accusatory and contradictory principles. Failure to intervene can harm both the prosecution and the defense. The prosecution, for obvious reasons. To the defense because the absence of an accuser can produce conditions for the judge to assume an inquisitive position. The accused has the right to an accuser. It is the guarantee that the judge will remain equidistant from the parties, without having to play the role of one of them. The lack of intervention by the Public Ministry in all terms of the action brought by it constitutes absolute nullity ( article 564, item III, letter “d”, first part). Otherwise, the lack of intervention in all the terms of the intent by the offended party, when it comes to a crime of public action, implies relative nullity ( article 564 , item III, “d”, second part, combined with article 572 ) . The lack of ministerial intervention in the action brought by the offended party, in the case of a private action crime, results in relative nullity ( article 564 , item IV). Plaintiff, defendant, prosecutor, that is, the one who demonstrates interest, may, in theory, argue nullity.
Jurisprudence
The MP cannot appeal against the acquittal : In private criminal proceedings, the MP cannot appeal against the acquittal aimed at convicting the defendant (RJTJRS 98/177).
Prosecutor’s absence from hearing. Defense silence on the fact. Preclusion: The fact that, in an instruction hearing, the magistrate, after registering the absence of the representative of the MP (who, even summoned, did not appear), complements the questioning of the witnesses carried out by the defense, without the Defender has protested at the opportune moment or shown effective prejudice ( REsp 1.348.978-SC, Reporting Judge Rogerio Schietti Cruz, Reporting Judge for judgment Justice Nefi Cordeiro, judged on 12/17/2015, DJe 2/17/2016 – Newsletter n. 577 ).
