Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 6 CPP – Searches, inquiries, interceptions, conduction, indictment, defense, expertise.

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Home » Criminal Procedure Code – Commented » Book I – General Procedure » Title II – Police Inquiry – art. 4th to 23rd » Article 6th CPP – Searches, inquiries, interceptions, conduction, indictment, defense, expertise.

Art. 6o As soon as it becomes aware of the commission of the criminal offense, the police authority must:
I – go to the location, ensuring that the state and conservation of things are not altered, until the arrival of the criminal experts; (Wording provided by Law No. 8,862, of 3.28.1994)
II – seize the objects that are related to the fact, after being released by the criminal experts; (Wording amended by Law No. 8,862, of 3.28.1994)
III – collect all the evidence that serves to clarify the fact and its circumstances;
IV – listen to the offended party;
V – hear the defendant, in observance, where applicable, of the provisions of Chapter III of Title Vll, of this Book, the respective term having to be signed by two witnesses who have heard the reading;
VI – carry out the recognition of people and things and confrontations;
VII – to determine, if applicable, that a forensic examination and any other expertise be carried out;
    VIII – order the identification of the indicted by the fingerprint process, if possible, and attach his background sheet to the file;
    IX – verify the prior life of the accused, from an individual, family and social point of view, his economic condition, his attitude and state of mind before and after the crime and during it, and any other elements that contribute to the appreciation of his temperament and character.
    X – gather information about the existence of children, their ages and whether they have any disabilities and the name and contact details of any person responsible for the care of the children, indicated by the prisoner. (Included by Law No. 13,257 of 2016)

first step

Download an ordinance:  As soon as it becomes aware of the commission of the criminal offense, the police authority must, as a first step, issue an ordinance, initiating the police inquiry. It should be noted that the investigation, to be initiated, and even to reach its end, does not necessarily need a suspect. It may happen that no one is indicted in the course of the investigation.

Order of steps:  There is no order. The police authority has discretionary power to establish which steps will be taken and the respective sequence.

Distinction between evidence and evidence. Concept of proof:  See heading  Evidence, conviction and proof  in comments on Article 155 .

Doctrine

Márcio Adriano Anselmo:  The presidency of the inquiry and the request for due diligence . Higher School of Police.

Go to the place of the fact (item I)

Download an ordinance:  As soon as it becomes aware of the commission of the criminal offense, the police authority must, as a first step, issue an ordinance, initiating the police inquiry. It should be noted that the investigation, to be initiated, and even to reach its end, does not necessarily need a suspect. It may happen that no one is indicted in the course of the investigation.

Distinction between evidence and evidence. Concept of proof:  See heading  Evidence, conviction and proof  in comments to Article 155.

Apprehension of instruments and objects (item II)

https://youtube.com/watch?v=GV73KndZNBw%3Ffeature%3Doembed

Considerations:  After being released by the criminal experts, the authority must seize the objects and instruments that were related to the fact.

Search and seizure:  Can be done at home or in person. The house search and seizure, under the terms of the  CF, article 5, item XV , must be carried out during the day and, necessarily, preceded by a court order (search and seizure warrant ordered by the judge). This court order, according to Teori Albino Zavascki, must be substantiated, under penalty of recognizing its illegality (RTRF 4th Region 10/363). The personal search, if not carried out by the chief of police, must be preceded by a search and seizure warrant issued by him. It is worth mentioning that a police officer without a warrant signed by the chief of police cannot carry out a personal search. Except, of course, in the case of flagrante delicto (or well-founded suspicion of flagrante delicto). The rules relating to search and seizure are contained in articles 240 to 250 CPP .

Timing of the search and seizure:  The search and seizure can be determined before starting the police investigation, during the investigation, during the criminal investigation, at the appeal stage by court order ( article 616 ) and during execution.

Open letters:  Item  “f” of paragraph 1 of article 240 of the CPP  was not accepted. Cards, open or not, cannot be seized. As provided in  article 5, item XII of the CF , the secrecy of correspondence is inviolable. Correspondence is confidential, according to the Constitution, and, therefore, it does not matter if it has already been opened or not by the addressee.

Access to cell phone and computer content:  Regarding access to cell phone and computer content in cases of arrest in flagrante delicto and search and seizure warrant, see case law under the title  Interception of data and telephone communications , in comments to article 157.

Inviolability of the lawyer’s office:  Article  7, item II of Law 8.906/94  (Statute of Advocacy), provides for the inviolability of the lawyer’s office: “A lawyer’s rights are: (…) II – the inviolability of his office or location work, as well as their work instruments, their written, electronic, telephone and telematics correspondence, provided they are related to the practice of law.” A search and seizure warrant cannot be issued to collect evidence at the lawyer’s office against the accused defended by him. This inviolability, however, is not absolute. There is no inviolability of the lawyer, or his office, when he is committing a crime or when any material that constitutes an element of the corpus delicti is kept in his office (article 243, paragraph 2 ).

How the house search is carried out:  See  article 245 .

Home inviolability:  See notes to  Article 283 .

Home inviolability and arrest warrant:  See notes to  Article 293 .

Home inviolability in permanent crimes:  See notes to  Article 303 .

Nocturnal home search and evidence obtained through illegal arrest:  These are illegal.

Crimes against the inviolability of the home:  Article 150 of the CP .

Personal Search:  See heading  Personal Search Order  in comments to Article 240.

Contents of the search warrant:  Article 243 .

Personal search:  Article 244 .

Access to content on cell phones and computers:  Judicially unauthorized invasion of  WhatsApp data and conversations  by the police, in case of arrest in flagrante delicto, violates the constitutional right to privacy. On access to cell phone and computer content in cases of arrest in flagrante delicto and search and seizure warrant, see case law under the title  Interception of data and telephone communications  in comments to article 157.

Examination of cell phone content:  Judicially unauthorized invasion of  WhatsApp data and conversations  by the police, in case of arrest in flagrante delicto, violates the constitutional right to privacy.

Destination of seized objects:  The instruments and objects seized accompany the investigation records ( article 11 of the CPP ). Those instruments whose loss in favor of the Union is decreed will be destroyed or collected in a criminal museum ( article 124 of the CPP ). Confiscation may be decided by a court, at the request of the Public Prosecutor’s Office, following the archiving of the investigation, a sentence of dismissal or an acquittal ( article 779 of the CPP ).

Jurisprudence

Informing the press about meetings under investigation that are subject to a controlled investigation, as well as alerting them to the date of compliance with search and seizure warrants, constitutes a crime of breach of functional secrecy: Informing journalists about an alleged meeting to be held between third parties  – that are investigated in a given police operation –, in which “controlled police action” would occur, constitutes a breach of functional secrecy (CP, art. 325, caput ). In the same sense, it characterizes a crime of violation of functional secrecy, in the qualified form (CP, art. 325, § 2º), to alert journalists about the date of execution of search and seizure warrants ( AP 563/SP, rel. min. Teori Zavascki, judged on 21-10-2014, judgment published in the DJE of 28-11-2014  – Newsletter 764, Second Panel).

 Judicial search and seizure warrant without indication of the address entails immediate return of seized material , rel. Min. Gilmar Mendes, judged on 16-12-2014, judgment published in the DJE of 19-3-2015 – Newsletter 772, Second Panel).

Collect all evidence. Witnesses (item III)

https://youtube.com/watch?v=SrpqJw70-0s%3Ffeature%3Doembed

Hearing witnesses:  In principle, anyone can be a witness ( Article 202 ).

Prohibited from testifying:  See  Article 202 .

Witness Protection Program:  Law  n. 9,807/1999  establishes norms for the protection of threatened victims, witnesses and whistleblowers.

A witness who remains silent:  “Shutting up the truth” constitutes a criminal offense under  article 342 of the CP :  Making a false statement, or denying or silting up the truth as a witness, expert, accountant , translator or interpreter in a judicial or administrative process, police investigation, or in arbitration .

Crime committed by the witness:  The witness who conceals his true identity commits the crime of false testimony ( article 342 of the CP ), and not that of false identity ( article 307 of the CP ), since the latter makes the reservation that is characterized when the fact constitutes an element of a more serious crime:  Attributing yourself or attributing a false identity to a third party to obtain an advantage, for your own benefit or that of others, or to cause harm to others .

Obligation to keep secrecy, professional secrecy and secrecy of the source:  See in the comments to  article 207  regarding journalists, lawyers, congressmen, senators, prosecutors, delegates and guardians of minors and persons who cannot be held responsible.

Witnesses with prerogatives of place, day and time:  The day and time must be adjusted to be heard. With regard to judges,  Complementary Law n. 35/1979, in its article 33 : “The magistrate’s prerogatives are: I – to be heard as a witness on a day, time and place previously agreed with the authority or Judge of equal or lower instance”. As for the Federal Public Prosecutor’s Office,  Complementary Law 75/93 states in article 18 : “The members of the Federal Public Prosecutor’s Office have the following prerogatives: (…) or the competent authority”. Tangent to the State Public Ministry,  Law n. 8.625/93 in article 40  states : “The prerogatives of the members of the Public Prosecutor’s Office, in addition to others provided for in the Organic Law, are: I – to be heard, as a witness or victim, in any process or inquiry, on a day, time and place previously agreed with the judge or the competent authority”. As for the Public Defender’s Office,  Complementary Law n. 80/94 prescribes in article 4 4, item XIV: “The members of the Federal Public Defender’s Office are guaranteed to be heard as a witness, in any process or procedure, on a date, time and place previously agreed with the competent authority”.

Fines for non-appearance of the witness:  The fines of article 219 of the CPP cannot be applied by the police authority, as the device is expressed when referring to the judge.

Coercive conduction of the witness and expert:  Coercive conduction is still a form of imprisonment, albeit for a short period of time. In view of this, it can only be determined  by written and substantiated order of the competent judicial authority  ( article 5, item LXI of the CF ). If the presence of a witness is required for the investigation, the police chief must issue a notification to the witness, designating the day and time for his appearance. If there is no response, you must request the judge to issue a warrant for coercive conduction. See comments to  Article 260 .

Doctrine

Francisco S. Neto:  Virtual agent infiltration is a breakthrough in special criminal investigation techniques  Criminal Science Channel.

Leonardo Marcondes Machado:  Special testimonials at the service of punishment generate revictimization .  Higher School of Police.

Collect all evidence. Interception of communications (item III)

https://youtube.com/watch?v=szhKpLcs1jo%3Ffeature%3Doembed

Inviolability of correspondence, telegraphy, data and telephone communications:  Article  5, item XII of the CF , establishes: “The secrecy of correspondence and telegraphic communications, data and telephone communications is inviolable, except, in the last case, by court order, in the cases and in the manner established by law for the purposes of criminal investigation or criminal procedural instruction”. The “last case ”  referred to by the provision, which authorizes interception with a court order ,  covers data communications and telephone communications.

Prisoner correspondence:  Contact with the outside world through written correspondence from the arrested defendant may be suspended or restricted ( article 41, item XV, sole paragraph of Law n. 7.210/84 ).

Communication between the lawyer and the prisoner: The secrecy of communications between the prisoner and his lawyer is ensured, even in maximum security federal prisons. Paragraph 2, article 3 of Law no. 11.671/2008 , reads as follows: “Federal maximum security penal institutions must have audio and video monitoring in the parlor and common areas, for the purpose of preserving internal order and public safety, its use in cells and in legal assistance, unless expressly authorized by the court to the contrary.” Judicial authorization, obviously, can only be granted in a reasoned decision, if there is sufficient evidence that the lawyer is committing a crime in co-authorship with the prisoner. Never with the aim of obtaining evidence against the prisoner.

Interception of data and telephone communications:  The interception of data and telephone communications is regulated by  Law n. 9,296/96 .

Crime of unauthorized interception:  According to  article 10 of Law n. 9.296/96 , “it is a crime to intercept telephone, computer or telematics communications, or to break the secret of Justice, without judicial authorization or for purposes not authorized by law”.

Evidence of another crime in data or telephone interception:  According to  article 2, sole paragraph of Law n. 9,296/96, the situation under investigation must be clearly described. Combining this norm with the other items of that same article, it is concluded that telephone interception must have as its object a specific crime. The question that arises is: if the intercepted telephone conversation brings news of other crimes and evidence that are not directly or indirectly related to the investigated crime, can this evidence be used to initiate a new criminal investigation? The answer must be positive. In the same way, if the police agent, by simple chance, in the course of investigating a certain crime, comes across evidence of another crime, the collection and investigation of such evidence is licit. This interception has been called serendipity. Serendipity concerns discoveries made by chance. Complicated word, no? It is common to use them in the legal environment, preferably with huge sentences. For many, it lends an air of wisdom  to complexify  in  dogmatic excerpts   from  long-winded texts . Simplicity, to fools, has no value. They find themselves almost understanding what they are reading.

Interception at the request of the investigated person:  The law does not provide for the right of the investigated person to request the interception of data or telephone calls. Bearing in mind that the investigation is aimed at clarifying the real truth, these measures are applicable if the police authority understands that the request is justified, and must provide the judge with the respective authorization. By the way, all investigation instruments are, at the discretion of the chief of police – who presides over the inquiry, responsible for investigating the real truth -, at the disposal of the investigated person, among them, search and seizure, house search, personal search, telematic interceptions and telephone. In view of the substantiated request of the investigated person for such a measure to be carried out, and the authority’s refusal,  habeas corpus may be filed.

Interception of data or authorized telephone calls and communication with the defender:  If, during an interception of authorized communication, a conversation begins between the investigated person and his lawyer, the interception must be cut off or eliminated below, since, according to the wording of the Statute of Advocacy ( article 7, items II and III of Law n. 8.906/94 ), lawyers have the right to inviolability of their written, electronic, telephone and telematic correspondence, provided they are related to the practice of law, as well as communicating with their clients privately.

E-mail messages:  Case law differs as to whether e-mail messages constitute correspondence or data communication. If they are data, they can be intercepted based on  Law n. 9,296/96  and, if they are correspondence, they cannot.

Doctrine

Aury Lopes Jr and Alexandre Morais da Rosa: Validity criteria for searching the prisoner’s cell phone (WhatsApp) . Conjure

Carlos  Eduardo Thompson Flores Lenz :  New Criminal Issues. Telephone tapping in criminal proceedings . TRF4 Doctrine Review .

Christiano Leonardo Gonzaga Gomes:  The protection of telematic communication and terrorism: do we need new legislation or is Law n. 9,296/96?   aplicacao.mpmg.mp.br.

Gustavo Badaró:  Interception of Telephone and Telematic Communications: Limits to the Advancement of Technology . badaro lawyers

Gustavo Badaró:  Proposals to change the regime of illegal evidence in criminal proceedings . badaro lawyers

Marcelo Galli:  STJ classes differ on the transfer of confidential data by the Revenue Service to the Public Prosecutor’s Office . Conjure

Rodrigo Alves Carvalho:  Methodology for interception of encrypted data applied in criminal investigations . University of Brasilia.

Rômulo de Andrade Moreira:  Interview with Rômulo de Andrade Moreira: By Rodrigo Daniel  Silva. Conjure

Tania Nigri Public funds are not protected by bank secrecy . Conjure 

Jurisprudence

Fortuitous discovery of offenses that are not the subject of investigation:  The fact that evidentiary elements about the commission of a crime arise during the execution of a measure to breach bank and tax secrecy determined for the investigation of other crimes does not prevent, by itself, that the collected data are used to investigate the alleged commission of that crime ( HC 282.096-SP, Reporting Justice Sebastião Reis Júnior, judged on 4/24/2014 – Newsletter No. 539 ).

Fortuitous finding of evidence in the fulfillment of a search and seizure warrant at a law firm:  It is lawful to seize, at a law firm, drugs and firearms, in theory belonging to a lawyer, in the event that another lawyer has witnessed the compliance with the diligence at the request of the police, even though the search and seizure warrant was issued to seize a firearm allegedly belonging to an intern at the office – and not to the lawyer – and even though the said warrant does not expressly indicate a representative of the OAB location for monitoring the due diligence ( STJ, RHC 39.412-SP, Judge Felix Fischer, judged on 3/3/2015, DJe 3/17/2015 – Newsletter 557 ). 

 Data obtained with telephone interception can be used in criminal prosecution different from the one in which the judicial authorization for interception was obtained: HC 128.102, rel. Marco Aurélio, judgment on 9-12-2015, decision pending publication  – Newsletter 811, First Panel).

Collect all evidence. Environmental recording (item III)

https://youtube.com/watch?v=agqNjgmIgyU%3Ffeature%3Doembed

Request for documents:  During the criminal investigation, it is up to the police chief to request expertise, information, documents and data that are of interest to the investigation of the facts ( paragraph 2 of Law n. 12.830/2013 ).

Environmental recording:  In environmental recording, if the accused participates in the recorded conversation, he can freely use it in his defense in the process. If the conversation belongs to a third party, the recording is illegal. You can, however, use it to prove a relevant criminal fact that benefits you in criminal proceedings – not just to prove innocence.

Defendant who denies the authenticity of filming or recording:  It should, in principle, be determined to carry out expertise.

Remission: About environmental recording see title Environmental recording, home search, cell phone and expertise , in comments to article 157.

Doctrine

Alexandra Lemos Ramos:  The principle of open administration versus the principle of personal data protection . repository.ul.pt

Francisco S. Neto :  Law 12.850/13, controlled action and criminal organizations .Conjur.

Henrique Hoffmann Monteiro de Castro:  Requesting data is essential in the delegate’s search for the truth . Higher School of Police.

Luciano André da Silveira e Silva :  The undercover agent. Comparative study of legislation in Germany, Brazil and Portugal . Coimbra University.

Henrique Hoffmann Monteiro de Castro: Law 13.441/17 instituted virtual police infiltration .Conjur. 

Jurisprudence

Environmental recording. Legality: Criminal organization. Environmental recording performed by one of the interlocutors without knowledge of the other. Lawful proof. Innovations of Law n. 13,964/2019 (Anti-Crime Package). Consolidated understanding. No change ( HC 512.290-RJ , Reporting Judge Rogerio Schietti Cruz, Sixth Panel, unanimously, judged on 08/18/2020, DJe 08/25/2020).

Collect all evidence. Infiltration of agents (item III)

Infiltration of police agents: See heading Infiltration of agents in comments to article 157.

Illicit evidence and nullities

Illicit evidence and nullities in the investigation:  The nullities of the investigation do not affect the process. However, they are able to reduce the evidentiary value of the investigation, even provoking a lack of just cause for the criminal action or even the illegality of the preventive detention decree (in this video we discuss this subject ). As for illicit evidence, all those resulting from it are invalid and must be excluded from the case file. In comments to  Article 157 , we distinguish illicit proof from nullity, examining the different consequences of recognizing one and the other. In the comments to  Article 304 , there are some observations on the nullity of arrest in flagrante delicto, its effects on the arrest, on the evidence and the process.

videos

Flavio Meirelles Medeiros:  Nullities of the flagrante delicto provoking the illegality of the preventive measure  – video.

Listen to the offended party (item IV)

https://youtube.com/watch?v=FVZ_shaula0%3Ffeature%3Doembed

Time to listen to the offended party:  The police authority decides the best time to listen to the offended party. He is usually the first to be heard, as he is responsible for narrating and clarifying details of the fact.

Exhausting the means to hear the offended:  See comments to  Article 201 .

Coercive conduction of the offended party:  Coercive conduction is still a form of imprisonment, albeit for a short period of time. In view of this, it can only be determined  by written and substantiated order of the competent judicial authority  ( article 5, item LXI of the CF ). If the offended party needs to be present for the investigation to which he must be present, the police chief must send a notification to the offended party, designating the date and time for his appearance ( article 201, paragraph 1 ). If there is no response, you must request the judge to issue a warrant for coercive conduction. See comments to  Article 260 .

Proving value:  See comments to  Article 201 .

Preservation of the victim’s privacy:  Paragraph  6 of article 201  is applicable to the police authority: the necessary measures must be taken to preserve the victim’s privacy, private life, honor and image, and the confidentiality of the data may even be determined. , testimonials and other information contained in the case file regarding the offended party to avoid exposure to the media.

Listen to the defendant. Driving. Indictment (item V)

https://youtube.com/watch?v=3oa8Vh04X70%3Ffeature%3Doembed

Form of questioning:  The questioning of the accused at the police must obey the same rules, where applicable, as for his interrogation in court. He will be qualified and interrogated. He is not obligated to answer the questions. He has no commitment to the truth, because if he lacks it, he does not, in principle, commit any crime. He has the right, during his police interrogation, to be accompanied by a lawyer. However, he will not be able to intervene in the questions and answers. Once the defender is present,  the police authority has the duty, after proceeding with the interrogation, to ask him if there is any fact left to be clarified, formulating the corresponding questions if he deems it pertinent and relevant (article 188  of the CPP  combined with  article 6, item V). The request made by the defender, if rejected, must, at his request, be included in the minutes. A new interrogation may be determined at any time. The statement of inquiry must be signed by two witnesses who have heard it read. They are called reading or instrumental witnesses. They only watch the reading of the minutes of the interrogation and its signature by the accused. Strictly speaking, their value in the sense of conferring suitability to the testimony is none. If there was coercion, it will not be at that moment when the accused will disagree with the written statement, especially if he is in prison. As for the divergences between what was said and what is being read, the defendant, given the speed of reading and the intellectual level of the criminal clientele, is unable to perceive them. Even for the lawyer it is very difficult to identify the contradictions between what was said by the defendant and what is read quickly. It is yet another formality inserted in the law against the accused, and not in favor of him, since it will be said later: it was read and signed by instrumental witnesses  – as if the defendant had signed a check with guarantors.

The investigated person and coercive conduct:  Coercive conduct is still a form of imprisonment, albeit for a short period of time. In view of this, it can only be determined  by written and substantiated order of the competent judicial authority  ( article 5, item LXI of the CF ). Requiring the presence of the investigated person for the investigation act to which he must be present (qualification, identification, recognition by witnesses), the police chief must issue a notification to the investigated person, designating the day and time for his appearance. If there is no response, you must request the judge to issue a warrant for coercive conduction. If the conduction is for interrogation purposes, it is prohibited by the decision handed down in the Arguments of Breach of Fundamental Precept nos. 395 and 444 . See comments to  Article 260 .

Coercive conduct in ADPFs 395 and 444:  See comments to  article 260 .

Assumptions of the indictment  The investigation, when initiated, does not necessarily have an indictee or a suspect. The investigation may even end without an indictment. The act of indictment is not a discretionary act, it is binding. It takes place when there is suspicion that someone is the  author of a crime . Without proof of authorship or the existence of a crime, the indictment is inadmissible. It constitutes an illegal constraint that can be repaired via  habeas corpus . We affirm that the indictment is only appropriate when there is suspicion that someone is the author of a  crime . Without  evidence , the indictment  is not feasible. . As a crime means a typical, anti-legal and culpable fact, it is essential for the legality of the indictment: 1st – reasonable evidence of authorship related to the practice of a fact endowed with typicality; 2nd – the absence of intent or guilt has not been demonstrated; 3rd – the absence of a causal link between the action and the result has not been demonstrated; 4th – the existence of an excluding cause of unlawfulness is not proven. And, still, the non-imputability due to minors, the absolute absence of potential awareness of anti-legality (excusable prohibition error) or unenforceability of other conduct has not been proven. For the indictment, evidence of typicality and authorship is not enough. If A is the perpetrator of B’s ​​death, that fact alone does not justify the indictment. It must not be, for example, proved that the action was carried out in self-defence. Anyone who acted in a state of necessity or who did not act intentionally or culpably (provided it is evidenced) cannot be indicted. Against the illegal police indictment, it is up to habeas corpus  or the writ of mandamus,   judicial disindictment . The wording of item V of article 6 of the CPP is not the best. The correct thing would be to  listen to the investigator . As it is written –  listen to the accused  – it implies that the suspect, in order to be heard (and conducted), must first be indicted. The indictment is a binding act, subject to conditions implicitly established in the administrative law, and can only be carried out after verifying the existence of assumptions that authorize it. The idea that the indictment does not imply any embarrassment is absolutely erroneous. It results in consistent embarrassment in posting on the criminal record sheet.

The indictment does not bind the MP:  Whether or not the police authority has indicted the investigated person, this circumstance does not bind the prosecutor, it is indisputable. The Public Ministry is independent to form its own opinion. Upon receiving the survey, you can denounce it, request further steps or order its archiving.

Grounds for the indictment:  When indicting, the police authority must substantiate. It is an administrative act. Every administrative act must be substantiated, especially those that generate consequences, as in the case of indictment. In the indictment, the police authority must limit itself to explaining why it understands that there are indications of a crime. And that’s all. Even if the authority is convinced that there has actually been a crime, this conviction must be kept to itself. The indictment presupposes conviction and reasoning about evidence of crime, not proof of it. Evidence is  the indicative circumstance that a fact occurred . Evidence is the  set of evidence capable of authorizing the conviction that a fact occurred.. In evidence there is no conviction, there is indication, supposition, estimation. In proof, there is conviction, a subjective element. The indictment is not intended for the police authority to expose its conviction regarding the existence of a crime and authorship, but only its conviction regarding the existence of evidence. On the other hand, if the authority is convinced that there was no crime, or that the investigated person is not the author of a crime committed, equally, when justifying the non-indictment in the report, it should not “draw up an acquittal decision”. It must limit itself to explaining the reasons why it understands that there is not enough evidence for the administrative act of indictment. This matter deserves special attention in the case of an investigation of intentional crimes against life, the judgment of which is subject to the judgment of the jury court. They are lay judges. It must be avoided that they are influenced by judgments of third parties in the records. Excessive language in the pronunciation sentence constitutes cause for nullity. Inquiry acts do not generate nullity, however, excesses of language in the act of indictment or in the report in inquiry, having as object intentional crime against life, must be excluded from the file, being the parties forbidden to make reference to them during the trial in plenary. The sovereignty of the jury cannot be violated by those who have the duty of impartiality (delegate and judge). The accuser has the right to say that the accused is a criminal, since the Public Ministry does not have the duty of objective impartiality (subjective, yes). The defender can claim innocence. But the judge cannot pronounce the accused, informing that he is sending to trial a guilty . Nor can the chief of police scrutinize the evidence produced in the investigation to, in the end, conclude that he is sending a  criminal to the judiciary .

Improper order of indictment:  See this same subheading  under the heading Relations between the police and the Public Prosecutor’s Office , in comments on Article 4.

Doctrine

Eduardo Luiz Santos Cabette:  Relativizing Torture or the Return of Barbarism . Legal Content.

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.

Gustavo de Mattos Brentano: The application of the principle of insignificance by the Chief of Police . Criminal Science Channel.

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.

Pedro Canário:  Preventing a lawyer from guiding clients is restricting their defense, warn criminal experts . 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 ).

Interrogation as a formal act. Invalidity of the “interview”:  There is a violation of the right to silence and non-self-incrimination, established in the decisions handed down in ADPFs 395 and 444, with the carrying out of forced interrogation, disguised as an “interview”, formally documented during the execution of a search warrant and seizure, in which the subject of the due diligence was not given the right to consult his lawyer in advance, nor was the right to remain silent and not to produce evidence against himself certified, in the said report, under the terms of the legislation and precedents transcribed ( Complaint 33,711 min. Gilmar Mendes, year 2019 ).

Conviction based exclusively on informal statements given to police officers at the time of arrest in flagrante delicto is not allowed: The Federal Constitution imposes on the State the obligation to inform the prisoner of his right to silence not only during formal interrogation, but right at the moment of the approach, when he receives voice of arrest by a police officer, in a situation of flagrante delicto. Furthermore, in line with the Court’s precedents, the lack of a warning to the right to silence, at a time when the duty to inform is imposed, renders the evidence illicit. This is because the privilege against self-incrimination ( nemo tenetur se detegere), erected as a fundamental guarantee by the Constitution, it was important to compel the inquirer, in the police or in court, to the duty of warning the questioned about the possibility of remaining silent. In this way, any supposed confession signed, at the time of the approach, without observing the right to silence, is entirely useless for the purposes of conviction and, furthermore, invalidates other evidence obtained through such interrogation ( RHC 170843 AgR/SP, rapporteur Min. Gilmar Mendes, trial on 5/4/2021 ).

No need for prior subpoena of the technical defense: Prior subpoena of the technical defense of the investigated person is not required to take oral testimonies in the police investigation phase ( Pet 7.612 , rel. min. Edson Fachin, DJE of 2-20-2020).

Libelous denunciation and false self-accusation

https://youtube.com/watch?v=mGAh2B5TzNE%3Ffeature%3Doembed

Refusing to provide data in the qualification:  For some, it is an exercise of the right of defense for the respondent to refuse in the qualification to provide their data such as name, profession, address or even to provide untrue data (provided that it does not incriminate others) . For others, there is a criminal misdemeanor ( Decree-Law No. 3.688/1941 ) typified in Article 68: “Refusing the authority, when justifiedly requested or required by the latter, data or indications concerning one’s identity, status, profession, domicile and residence” . The majority understanding is that there is a crime of disobedience ( article 330 of the CP ). According to  Precedent 522 of the STJ, the conduct of giving oneself a false identity before the police authority is typical, even in a situation of alleged self-defense.

Slanderous denunciation:  If the respondent imputes the commission of the crime to another person who he knows is innocent, he is subject to answer for the offense of slanderous denunciation: “giving cause for the initiation of a police investigation, judicial proceedings, initiation of an administrative investigation, civil inquiry or action of administrative impropriety against someone, charging him with a crime of which he knows he is innocent” ( article 339 of the CP ).

False self-accusation:  If the respondent falsely confesses to a crime that he has not committed, he is liable for the crime of false self-accusation: “Accusing oneself, before the authorities, of a non-existent crime or one committed by another” (article 341 of the CP ) .

Precedents

STJ Precedent 522 :  The conduct of giving oneself a false identity before police authorities is typical, even in a situation of alleged self-defense (Third Section, approved on 3/25/2015, DJe 4/6/2015).

Listen to the defendant. Closure of the investigation (item V)

Withholding the investigation:  It is wrong to suspend the police inquiry via  habeas corpus  due to lack of evidence for the indictment. If there are not enough elements to do so, and even though the indictment has been carried out, the  habeas corpus  must be granted for the specific purpose of annulling the administrative act of indictment, since it is, given the lack of evidence, an administrative act illegal subject to judicial control. The inquiry can and should continue to investigate and prove authorship. The closure of the police investigation finds a place, that is, when instituted to investigate a fact that does not constitute a crime in theory. It is also to be considered as devoid of reason the understanding that in  habeas corpus no exam is required. Obviously it fits. There is no way to conclude that the indictment is void if the evidence is not examined. Likewise, there is no way to infer whether or not the investigated fact constitutes a criminal offense without examining the evidence. What is not authorized in the way of  habeas corpus  is the in-depth examination of evidence, or rather, the detailed evaluation of the evidence.

Doctrine

Alexandre Betini:  The locking up of the police investigation .  Faculty of Law of the University of São Paulo.

Listen to the defendant. The investigation in favor of the investigated (item V)

Indicted as a subject of rights:  The police investigation is inquisitive. However, one cannot start from there to say that the accused does not have rights, that he is a mere object of investigation. The accused does not lose his quality as an active citizen subject to subjective rights, some of which are constitutional, including ( Article 5 of the CF ): the right to humane treatment and non-submission to torture ( item III ); the inviolability of the home ( item XI ); the inviolability of communications ( item XII ) the right to physical and moral integrity ( item XLIX ); the presumption of innocence ( section LVII ); the right to lawful imprisonment ( item LXI); the right to  habeas corpus  ( item LXVIII ).

Indicted as a subject of rights or as an object with guarantees?  It is customary to state, with all the polish, conviction and dogmatic pride, that the accused “is no longer, as in the past, a mere object of investigation, but a subject of rights”. Well, with regard to the exercise of  such rights , the standard phrase that can commonly be found in judicial decisions to deny the rights of investigated persons is:  the inquiry is a procedure of an inquisitive nature, and the right of defense will find its place in all its breadth when the procedural relationship was inaugurated. Based on this reality, there are those who maintain that the accused is not a subject of rights, but someone who only has guarantees, and that, in fact, he, the accused, is the object of the inquiry investigation. It is a realistic and pessimistic view. However, technically, we disagree with her. There is conditioning in Brazilian doctrine, perhaps because the first criminal proceduralists were public prosecutors (including, for them, the object of the criminal procedure was the right to punish, and it is still possible to read in some texts that the criminal procedure is the pretense punitive law in motion, that is, a kind of  criminal law with legs), in identifying investigated as guilty. Well, investigated is investigated. Could be guilty. It could be innocent. The lawyer’s participation in the inquiry can be proactive. In the interrogation, at the end, he can propose to the police authority that he make certain inquiries to the investigated person. You can do the same for witnesses. Can the delegate refuse? He can. In the expertise, if necessary, he has the right to ask questions. He can propose witnesses to be questioned. Having knowledge of important facts that contribute to the clarification of the facts, he must request a reserved audience with the chief of police to expose them.

Indicted as a subject of rights or object with guarantees? In continuation, and examining this theme more extensively, see the subtitle  The accused as an unidentified object in the title The prosecution orders, the defense asks. The fable of equality in criminal proceedings  , in comments to article 156.

The investigation in favor of the investigated person:  The investigation can and should turn in favor of the investigated person if, at a given moment, in its course, evidence appears pointing to his innocence. The police authority may even ask the judge for measures in favor of the investigated person, including interception of data and telephone communications, environmental recording, house searches, breach of bank and tax secrecy. These measures can, of course, also be requested by the person being investigated in the form of  habeas corpus .

Habeas corpus  or writ of mandamus?  Faced with a violation of the right of being investigated in a police investigation, what is the correct measure,  habeas corpus  or writ of mandamus? What difference does it make if the judge goes to court every morning by car, bus or on foot? Does it change anything for the judge to grant a writ of mandamus with a pen, typewriter or  notebook ? Will the decision granting the order cease to have value if it is titled “note” or “do as I wrote below”? Normally, violations of law in an investigation are resolved with  habeas corpus . There is nothing to prevent the filing of a writ of mandamus. habeas corpus is granted  whenever someone suffers or is threatened with violence or coercion in their freedom of movement, due to illegality or abuse of power ( article 5, item LXVIII of the CF ). A writ of mandamus is issued to protect a clear and certain right, not supported by  habeas corpus  or  habeas data , when the person responsible for the illegality or abuse of power is a public authority or agent of a legal entity in the exercise of attributions of the Public Power ( article 5, item CF LXIX). It is not uncommon to be denied the granting of a writ of mandamus on the grounds of instrumental impropriety. Impresses! The form is a guarantee of the parties. Especially the accused in criminal proceedings or investigated in the police investigation. There is no other function and purpose of form. Form is a guarantee of right. It cannot, therefore, be used in deviation of purpose, as justification for denial of jurisdiction. Well, if  habeas corpus  can be sent written on a napkin and signed with a fingerprint, why can’t it be received wrapped in a writ of mandamus?! Passarinho distinguishes birdseed, it doesn’t matter if served in a bowl or cup.

Doctrine

Alexandre de Moraes:  The Indispensable Contribution of José Celso de Mello Filho to the Effectiveness of the Brazilian Constitutional Jurisdiction in Defense of Fundamental Rights . Digital library.

Francisco Sannini Neto:  Police indictment and its consequences . Criminal Sciences Channel.In this article, Francisco Sannini deals with various aspects related to the indictment in the police investigation. “(…) Under the formal and practical aspect, the indictment is composed of the police interrogation and the qualification of the investigated person; the collection of information about his previous life and the preparation of the so-called Criminal Identification Bulletin, which comprises information on the accused’s qualification, characteristic signs, assigned criminal offense, data on the police investigation and other information necessary for registration in the computerized system of criminal record, in addition to fingerprint identification, in case the suspect is not civilly identified (art.5°, LVIII, CF) (…)”.

Henrique Hoffmann Monteiro de Castro There is contradictory and wide defense in the police investigation .cast This article by Henrique Hoffmann is relevant insofar as the author recognizes, in a well-founded way, the rights to adversarial proceedings and defense during the investigation phase. However, this circumstance does not exempt the partiality of this phase. Inquisitoriness is inseparable from partiality. No matter how hard the inquisitor tries, he cannot be impartial. The method does not help you. The judicial process works as a filter. It’s the warranty filter. If the imputation goes through the guarantee, the consequence is the condemnation. The process basically puts the evidentiary elements of the investigation to the test. The State’s turn is the inquiry. From the accused, it is the process. Therein lies the reason why the proceedings must be inspired by the presumption of innocence. If it weren’t, there would be a double inquiry. Our repressive system is complex. They are stages in relative opposition, in which the intensity of the principles in one and the other is variable, seeking with this the approximation of the maxim of justice and truth. The police investigation is a first, inquisitive stage. The examination of this inquisitive result is carried out at a distance by the Public Prosecutor’s Office. In a partial way, but critically, because it is far from the investigation. Submitted to the imputation of the Judiciary, the contradictory and full defense is the best system to determine whether the hypothesis described in the complaint is valid or not. but critical, because far from the investigation. Submitted to the imputation of the Judiciary, the contradictory and full defense is the best system to determine whether the hypothesis described in the complaint is valid or not. but critical, because far from the investigation. Submitted to the imputation of the Judiciary, the contradictory and full defense is the best system to determine whether the hypothesis described in the complaint is valid or not.

Tiago Gregório de Vieira Santos:  The ample defense and the contradictory applied to the police investigation .  bdigital.ufp.pt.

Jurisprudence

Indictment:  Indictment is only applicable when there is evidence of authorship of a crime whose materiality is proven. Habeas corpus  must be granted for hearing statements without criminal identification (RT 649 / 267). In the absence of evidence of authorship, the indictment is inappropriate. In this case,  habeas corpus  may be granted in order to suspend the formal indictment until the determination of responsibility within the investigation (RT 612 / 319).

Listen to the defendant. Defensive investigation (item V)

https://youtube.com/watch?v=OK0eHWNEURI%3Ffeature%3Doembed

Defensive investigation:  The defensive investigation can be carried out independently (without the collaboration of the police authority) by the defendant’s defender, with or without the collaboration of the investigated/accused, or by the investigated himself alone. In order to understand this right, it is necessary to put yourself in the position of that citizen who is being unfairly investigated in a police investigation, and who, although he has made efforts to indicate the means of proof to the authorities responsible for the repression of crimes in order to demonstrate his innocence, does not attention was paid. The State does not have the right to demand that you keep your hands tied while it carelessly searches for alleged evidence of guilt, putting your freedom at risk.

Constitutional foundation of the defensive investigation:  The defensive investigation is based on the  caput  of  article 5 of the Federal Constitution  , which proclaims that  Brazilians and foreigners residing in the country are guaranteed the inviolability of the right to life, liberty, equality, security and property (…) . It is also based on  item LV of that same constitutional provision  , which guarantees the defendants in general  the contradictory and ample defense, with the means and resources inherent to it .

Timing:  Can be performed at any phase of the pursuit. During the police investigation, in the criminal instruction, during the appeal or execution phase.

Assistance from professionals:  There is no impediment for the lawyer to seek assistance from professionals with technical knowledge in different areas.

Examination of witnesses:  There is no impediment for witnesses to testify at the lawyer’s office. It is interesting that they are recorded by an audiovisual system. There is also the alternative of criminal justification.

Elaboration of reports and expert examinations:  Qualified professionals can be hired to prepare reports and expert examinations.

Interception of telematics and telephone communications:  Jurisdiction is reserved. They can be requested from the judge. Once authorized by the judge, both the Public Prosecutor’s Office and the Police can receive and record the intercepts that are made by the outsourced company Guardião. If there are justifiable reasons, the lawyer may present them to the judge and request that a qualified professional intercept and record the communications.

Breach of bank and tax secrecy:  May be requested from the judge.

Search and seizure:  The investigated may, in a substantiated petition and containing the supporting documents of the respective allegations, request the issuance of a search and seizure warrant to the competent criminal judge, aiming at the collection of evidence. The warrant may be for a thing, person or domicile. The order may be carried out by the bailiff.

Environmental recording:  It can be done by the investigator himself, to prove his innocence.

The Order of Lawyers and defensive investigation:  The Federal Council of the Order of Lawyers of Brazil, on December 11, 2018, approved the Provision that regulates the exercise of the professional prerogative of the lawyer to carry out investigative diligences and preside over defensive investigation. According to the  aforementioned regulation, the defensive investigation is oriented, especially, to the production of evidence for use in: I – request for initiation or suspension of investigation; II – rejection or receipt of denouncement or complaint; III – response to the accusation; IV – request for precautionary measures; V – defense in public or private criminal proceedings; VI – reasons for appeal; VII – criminal review; VIII – habeas corpus; IX – proposal for an award-winning collaboration agreement; X – proposed leniency agreement; XI – other measures aimed at ensuring individual rights in criminal proceedings. The lawyer and other professionals who provide assistance in the investigation do not have the duty to inform the competent authority of the investigated facts (Article 6 of the Provision). The activities described in the Provision are exclusive to the law,

Defensive investigation in Project 8045/2010:  In the project of the new CPP The wording of article 13 is as follows: “It is optional for the investigated person, through his lawyer, public defender or other representatives with express powers, to take the initiative to identify sources of evidence in favor of his defense, and may even interview people . § 1 The interviews carried out in the form of the caput of this article must be preceded by clarifications about their objectives and the formal consent of the people interviewed. § 2 The victim may not be interpellated for the purposes of defensive investigation, unless authorized by the guarantee judge, always safeguarding her consent. § 3 In the case of § 2 of this article, the guarantee judge may, if applicable, set conditions for conducting the interview. § 4 Interview requests must be made with the necessary discretion and reserve, on working days and observing business hours. § 5 The material produced may be added to the investigation records, at the discretion of the police authority. § 6 The persons mentioned in the caput of this article will be liable civilly, criminally and disciplinarily for the excesses committed”.

Defensive investigation is not criminal investigation. Legality:  Authoritarian regimes are unfriendly to lawyers, especially criminal defenders, as they represent an inconvenience to arbitrariness. Defensive investigation and criminal investigation are distinct activities. They cannot be confused with the aim of hindering the legitimate exercise of criminal defense. The criminal investigation, according to  article 144 of the CF, items I and IV , is the exclusive competence of the federal and civil police. The concept of criminal investigation is in  article 4 of the CPP to the extent that it stipulates that the judicial police will have the purpose of investigating criminal offenses and their authorship. Criminal investigation aims to determine the crime and its authorship. Defensive investigation does not seek to clarify the crime and its circumstances, nor its authorship. Its purpose is precise, delimited: it seeks to collect elements of evidence in order to remove the responsibility of the accused. It is exercised jointly by the investigated/accused and the defender. It has a triple basis: the right of self-defense, the prerogatives of the lawyer and the broad constitutional defense. Sustaining that the investigated person and his defender cannot investigate and collect evidence with the aim of demonstrating innocence in an investigation or in the course of a criminal investigation is foolish, as it is the negation of criminal law, of self-defense, in short, of the right of defence. The idea that defensive investigation is forbidden is misplaced. By the way, it doesn’t matter whether it is prohibited or not, no one will stop flapping their arms if they are drowning, no one will prevent a third party from helping. Criminal law and defense have resisted intolerance and arbitrariness over the years. On the other hand, we understand that a lawyer is prohibited from presiding over the investigation of crimes and authorship. For whatever purpose (assistant for the prosecution, criminal complaint, etc.), given that, in this case, it will be invading the attribution of the police authority. Criminal law and defense have resisted intolerance and arbitrariness over the years. On the other hand, we understand that a lawyer is prohibited from presiding over the investigation of crimes and authorship. For whatever purpose (assistant for the prosecution, criminal complaint, etc.), given that, in this case, it will be invading the attribution of the police authority. Criminal law and defense have resisted intolerance and arbitrariness over the years. On the other hand, we understand that a lawyer is prohibited from presiding over the investigation of crimes and authorship. For whatever purpose (assistant for the prosecution, criminal complaint, etc.), given that, in this case, it will be invading the attribution of the police authority.

Doctrine

André Augusto Mendes Machado:  A defensive criminal investigation . USP.

Aury Lopes Jr., Alexandre Morais da Rosa and Gabriel Bulhões:  Defensive investigation: the power-duty of advocacy and citizenship law . Conjure

Francisco Firmo Barreto de Araújo:  The contradictory in the police investigation and the role of the public defender .  University of Fortaleza.

José Barcelos de Souza:  Defense powers in investigation and investigation by the defense .  Crumbs.

Kleudson Moreira Tavares:  Criminal Investigation: The Role of the Defense in the Preliminary Phase of the Criminal Procedure . Higher Institute of Police Sciences and Homeland Security.

Tatiane Imai Zanardi:  Defensive criminal investigation: a practice to be disseminated . FAE University Center.

Listen to the defendant. The prize award. The lawyer in the investigation (item V)

https://youtube.com/watch?v=xOvZJWIB2CM%3Ffeature%3Doembed

Right to follow-up the investigation:  Pursuant to  article 7, item XXI of Law no. 8.906/1994  (Statute of the OAB), it is the right of the lawyer to assist his investigated clients during the investigation of infractions, under penalty of absolute nullity of the respective interrogation or testimony and, subsequently, of all investigative and probative elements arising or derived therefrom, directly or indirectly, and may even, in the course of the respective investigation: a) present reasons and questions (…).

Right to examine records:  Pursuant to  article 7, item XIV of Law no. 8.906/1994 , the lawyer has the right to examine, in any institution responsible for conducting investigation, even without a power of attorney, records of flagrante delicto and investigations of any nature, completed or in progress, even if concluded by the authority, being able to copy parts and take notes, in physical or digital form. Binding Precedent 14 of the STF follows  :  It is the right of the defender, in the interests of the defendant, to have broad access to the evidence that, already documented in an investigative procedure carried out by a body with jurisdiction of the judicial police, concerns the exercise of the right of defense  (see jurisprudence subsequent to the publication of the Precedent ).

Crime of abuse of authority against the lawyer:  It constitutes provision of  article 7, paragraph 12 of Law n. 8.906/1994 , that failure to comply with the rights established in item XIV (right to examine records), the incomplete supply of records or the supply of records in which parts already included in the investigative notebook were withdrawn will imply criminal and functional liability for abuse of authority of the person in charge that prevents the access of the lawyer with the intention of jeopardizing the exercise of the defence, without prejudice to the subjective right of the lawyer to request access to the file to the competent judge.

Accompaniment by the Public Defender:  It is the institutional function of the Public Defender’s Office to “accompany the police investigation”, including the immediate communication of the arrest in flagrante delicto by the police authority, when the prisoner does not appoint a lawyer (article 4, item XIV of Complementary Law n. 80/1994 ). See comments to  Article 306 .

Immunity and lawyer’s rights:  See comments to  Article 261 .

Lawyer’s arrest:  See comments to  Article 261 .

Public Defender’s Office:  See comments to  Article 261 .

Constituted defender:  See comments to  Article 261 .

Public defender, dative defender, constituted defender, technical self-defense and  ad hoc defender :  See comments to  article 263 .

Award-winning delation in different laws:  When the accused, by agreement, confesses to the crime and contributes to its clarification, pointing out co-authors, there is what is called award-winning delation. With it, the informer receives benefits ranging from reduced sentence to pardon (depending on the applicable law and the agreement). It is regulated by several laws:  Law 7.492/86, article 25, paragraph 2  (crimes against the financial system); Penal Code, article 159, paragraph 4  (extortion through kidnapping); Law 8.072/90, article 8, sole paragraph  (heinous crimes); Law 8.137/90, article 16, sole paragraph  (crimes against the tax system); Law 9.613/98, article 1, paragraph 5 (crimes of money laundering); Law 9.807/99, articles 13 and 14  (applies to any crimes); Law 11.343/2006, article 41  (narcotics trafficking); Law 12.850/2013  (criminal organization). See more topics on plea bargaining in the comments to  Article 197 .

Doctrine

See doctrine and jurisprudence  referred to in comments to  article 197  under the heading  Delation in the criminal organization law .

Jurisprudence

 The rules for determining jurisdiction must be observed when setting the court to prosecute and judge the crimes reported, including those of connection: collaborator, are not connected with the facts object of the matrix investigation. In this sense, the verification of the facts revealed by the collaborator will depend on the place where they were consummated, their nature and the condition of the incriminated persons, if they hold jurisdiction by prerogative of function ( Inq 4.130 QO, rel. min. Dias Toffoli, judgment on 23 -9-2015, judgment published in the DJE of 3-2-2016  – Bulletin 800, Plenary).

Appropriate remedy against the refusal of approval: The criminal appeal is the appropriate remedy to challenge the decision that refuses the approval of the award-winning collaboration agreement, but in the face of objective doubt, the application of the principle of fungibility is appropriate ( REsp 1.834.215- RS , Reporting Minister Rogerio Schietti Cruz, Sixth Panel, unanimously, judged on 10/27/2020, DJe 11/12/2020).

Fishing expedition: In addition to violating the prerogatives of law, the initiation of broad, unspecific and unreasonable search and seizure measures to the detriment of lawyers can demonstrate the practice of “fishing expedition”. The jurisprudence of the STF grants a strict and rigid interpretation to the norms that make search and seizure possible, especially when directed at lawyers in the exercise of their profession. In the present situation, the legal requirements or the prerogatives of the lawyer were not observed, with a wide outbreak of measures that aimed to “fish” evidence against the accused lawyers and possible new investigated ones. It should be noted that, by granting the search and seizure, the requested authority did not demonstrate the specific indispensability of the measure for processing the facts (Rcl 43479/RJ, rapporteur Min. Gilmar Mendes, judgment on 8.10.2021 ).

Recognition of people and things and clashes (item VI)

https://youtube.com/watch?v=vRWlwI7p7Zc%3Ffeature%3Doembed

Recognition of persons or things:  The police authority must, during the course of the inquiry, proceed with the recognition of persons and things. Person recognition must be carried out in accordance with the rules established in  Articles 226 to 228  of the CPP.

Recognition alongside other people:  Item II of article 226 of the CPP orders that the person who intends to carry out the recognition be placed,  if possible, alongside others. The police authority must spare no efforts to carry out this type of recognition, in the case of a process in which there is only one witness (or two witnesses), or in which the only testimony is that of the victim (which is common in crimes against sexual freedom), or when there is doubt as to authorship in any proceeding. It is necessary to exhaust the possibilities of putting the investigated person together with other people. In these situations, not placing it with other people (who must be qualified in the minutes to eventually be heard in court), implies nullity, since it is an omission of an essential act. There are more judicial errors in crimes committed away from witnesses. In these crimes, therefore, caution must be redoubled at the time of recognition.

Confrontations:  Testimonies can be compared between the accused, between the accused and the witnesses, between the accused and the offended, between witnesses, whenever they differ in their statements. See comments to  Article 229 .

Doctrine

Affonso Celso Pupe da Silveira Neto:  Relevant aspects regarding the recognition of persons or things according to the Criminal Procedure Code and its practical application .  jus.com.br.

João Henrique Gomes de Sousa:  Elements for the comparative study of the recognition of people in Criminal Procedure from the standpoint of the trial judge . tre.mj.pt.

Rafael Francisco França:  Recognition as a Criminal Investigation Method: jurisprudential positioning and criticism of the model . periodicos.pf.gov.br.

Rafael Sauthier:  Criminal identification and the photo album . editora.pucrs.br.

videos

Flavio Meirelles Medeiros:  Nullities of the flagrante delicto provoking the illegality of the preventive

Aury Lopes Jr. and Pedro Zucchetti Filho:  The right of the accused not to attend the personal recognition . Conjure

Examination of the corpus delicti and expertise (item VII)

https://youtube.com/watch?v=FG_wA1Or6Uk%3Ffeature%3Doembed

Rules of Articles 158 to 184:  The police authority must determine,  if applicable , that a forensic examination and any other expertise be carried out. Where applicable, the rules of articles 158 to 184 of the CPP are used. When should the corpus delicti examination be carried out? When the infraction leaves traces ( article 158 ), since the confession, in this case, does not make up for the lack of examination. And when is the case of performing  other skills ? When necessary to clarify any fact relevant to the application of criminal law. These examinations are, as a rule, carried out by an official expert. It is up to him to respond to the formulated questions.

The accused and the expertise:  The police authority cannot deny the forensic examination when requested by the accused ( article 184 of the CPP ). Can deny the performance of other skills that are not necessary to clarify the truth. Clarifying  the truth  means  clarifying the truth relevant to the application, especially, of criminal and criminal procedural rules . It is not only interesting to clarify the fact linked to typicality, but also those related to authorship, anti-juridicality and culpability. Being denied the expertise required by the accused, necessary to clarify the relevant truth,  habeas corpus is applicable .

The defendant and the questions:  The inquiry aims to ascertain the truth, favorable or not to the defendant. This results in the possibility for the defender to present questions to the expert ( article 7, item XXI, letter “a” of Law n. 8.906/94 ). Failure to grant this opportunity to the defendant implies nullity, resulting in a reduction in the value of the expert evidence, especially if the expert evidence cannot be repeated in the criminal investigation. In the case of a corpus delicti examination, depending on what there was to be clarified, one could consider the absolute nullity of the process itself. In this case, we are no longer facing a mere nullity verified in the inquisitive phase, but procedural nullity, because, as we explained in the title  Obtaining evidence through a procedural act and nullity, the corpus delicti examination, although practiced in the investigation, is a procedural act, and, if it lacks an essential requirement, it will be faced with absolute nullity ( article 564, III, “b”) .

Infraction that leaves traces:  See comments to  Article 158 .

Examination of the indirect corpus delicti:  See comments to  Article 158 .

Inadmissibility of examination of the indirect corpus delicti:  See comments to  Article 158 .

Absence of examination and nullity:  See comments to  Article 158 .

Presentation of the complaint without examination of the corpus delicti:  See comments to  Article 158 .

Confession does not make up for the lack of examination:  See comments on  Article 158 .

The finding report in the Law on Drugs ( Law 11.343/2006 ) :  See comments to  article 158 .

Examination in the Abuse of Authority Law:  See comments to  Article 158 .

Doubt about mental integrity and examination:  See comments to  Article 158 .

About experts:  See comments to  Article 159 .

Disappearance of traces and indirect examination:  See comments to  Article 167 .

Impediment and suspicion of the expert:  See comments to  articles 279 and 280 .

videos

The Art of Digital Forensics:  Data Security Director’s interview with the Olhar Digital Program.

Flavio Meirelles Medeiros:  Nullities of the flagrante delicto provoking the illegality of the preventive

Criminal identification (item VIII)

https://youtube.com/watch?v=24DzppuGTkE%3Ffeature%3Doembed

Before the Federal Constitution:  Before the 1988 Constitution, the dominant understanding was mirrored in  Precedent 568 of the STF  (see also  jurisprudence subsequent to its publication ), which said:  Criminal identification does not constitute illegal constraint, even  if the accused has already been identified civilly . Some judges, a smaller number, made criminal identification dependent on need.

After the Federal Constitution:  Article  5, item LVIII of the CF , prescribes that the  civilly identified person shall not be subjected to criminal identification, except in the cases provided for by law . In this way, despite not having been formally revoked, Precedent 568 of the STF is superseded.

Who are the civilly identified:  Law n. 12.037/2009 in article 2 considers that civil identification is attested by: I – identity card; II – work card; III – professional card; IV – passport; V – functional identification card; VI – another public document that allows the identification of the accused. Military identification documents are equivalent to civilian identification documents.

Who are not civilly identified:  Law n. 12,037/2009 in article 3 lists those who are not civilly identified and who, therefore, are subject to criminal identification when: I – the document shows erasure or has evidence of forgery; II – the document presented is insufficient to fully identify the accused; III – the defendant has different identity documents, with conflicting information; IV –  the criminal identification is essential for police investigations, according to the order of the competent judicial authority, which will decide ex officio or upon representation of the police authority, the Public Ministry or the defense; V – include in police records the use of other names or different qualifications; VI – the state of conservation or the temporal distance or the location of the issue of the presented document make it impossible to fully identify the essential characters. Copies of the documents presented must be attached to the investigation file, or another form of investigation, even if considered insufficient to identify the accused. The criminal identification will include the dactyloscopic and photographic process, which will be attached to the records of the arrest in flagrante delicto, or the police inquiry or other form of investigation.

Collection of material for genetic profiling:  Although an identification document is presented, criminal identification may occur when it is essential for police investigations, according to the judge’s order, who will decide ex officio or upon representation of the police authority, the Public Prosecutor’s Office or the defense. In this case, criminal identification may include the collection of biological material to obtain the genetic profile ( article 3, item IV, combined with article 5, sole paragraph of Law n. 12.037/2009 ). Collection cannot be done under duress. If the investigated person refuses to cooperate, the police authority may seek biological material from the investigated person in intimate places frequented by him, such as his toilet or bed, even with a court order for a house search.

National Multibiometric and Fingerprint Bank: Finds regulations in Law n. 12,037/2009, which deals with criminal identification. The National Multibiometric and Fingerprint Bank aims to store data from biometric records, fingerprints and, when possible, iris, face and voice, to support criminal investigations. It is made up of records collected in criminal investigations or on the occasion of criminal identification. The registration data contained in any database managed by bodies of the Executive, Legislative and Judiciary branches at the federal, state and district levels, including the Superior Electoral Court and the Civil Identification Institutes can be part of the database. In the case of identification databases of a civil, administrative or electoral nature, integration or sharing will be limited to fingerprints and the information necessary to identify the holder. Access to the bank depends on judicial authorization.

Law 12.037/2009. Guarantees of the criminally identified:  See in comments to  article 259 .

The police authority and access to the genetic profile database:  During an investigation, the federal or state police authority may request the competent judge, in the case of an investigation, to access the genetic profile identification database. Said database contains the profile of those convicted of crimes committed, intentionally, with violence of a serious nature against a person, or for any of the crimes provided for in the Law of Heinous Crimes (article 9º-A, paragraph 2 of Law n. Law n. 7.210 /1984 ).

Criminal record sheet or antecedent sheet:  The database of the Institute of Identification and Statistics is kept up-to-date by information sent by the police and judicial authorities regarding the involvement of people with crimes. The background sheet reflects the information contained in the database. It’s a secret bank. Access is restricted to police officers, members of the Public Prosecutor’s Office, judges and the registered person. The police authority must attach to the investigation records the criminal record sheet of the accused. It must also send an official letter to the Institute of Identification and Statistics when sending the records of the investigation to the judge, mentioning the court to which the records were distributed, and the data relating to the criminal offense and the person of the accused (article 23). Conviction, conviction with  probation , revocation of  probation , extinction of the sentence, communication to the Institute of Identification and Statistics is up to the judge or court ( article 709 ).

Full sheet or background check:  Pursuant to article  202 of Law n. 7.210/1984  (Criminal Execution Law), the sentence is fulfilled or extinct, attestations or certificates provided by the police authority or by Justice assistants, any news or reference to the conviction, except to instruct the process for the commission of a new infraction. criminal or other cases expressed by law. In the same vein, article 20 of the CPP provides that, in the background checks that are requested, the police authority cannot mention any notes referring to the initiation of an investigation against the applicants.         

Doctrine

Carlos Eduardo Rios do Amara:  Genetic profile collection as a form of criminal identification .  Anadep.

Eduardo Luiz Santos Cabette:  Investigation of data, information, records and signals. Law 13.344/16 on human trafficking . Legal Scope.

Eduardo Henrique Alferes:  Criminal identification and criminal data . Legal Scope.

Rômulo Moreira:  The new criminal identification law . Crumbs.

Fernando Augusto Fernandes:  DNA registration is not enough without a project to identify weapons and projectiles . Conjure

Marco Antonio de Barros, Professor at the Faculty of Law – UPM and Professor Marcos Rafael Pereira Piscino:  dna and its use as evidence in criminal proceedings .  esmal.tjal.jus.br.

Valter Parr Corrêa :  Corporal interventions in criminal proceedings and criminal identification through genetic profiling .  repository.ul.pt. 2017.

Previous life of the accused (item IX)

Previous life sheet:  Item IX of article 6 of the CPP provides that it is up to the police authority to investigate the previous life of the accused, his economic condition, his attitude and mood before, after the crime and during it, and any other elements that contribute to appreciation of your temperament and character. This provision is intended to provide subsidies to the judge when applying the basic penalty ( article 59 of the CP ) and the fine penalty ( article 60 of the CP ).

Information about the children, including those with disabilities, and the person responsible for them

Gather information regarding the existence of children:  The last item of article 6 contrasts with the vocation of the CPP. It seems out of place. There is explanation. It was inserted into the code in 2016. The legislator realized that the accused may have children, including one of them with a disability, and that it would therefore be important to make contact with the person responsible. It should be noted that, according to the provisions of  article 5, items LXII and LXIII of the CF , the arrest of any person and the place where he is found will be communicated immediately to the competent judge and to the family of the prisoner or to the person indicated by him, being that the prisoner will be informed of his rights, including the right to remain silent, and he will be assured the assistance of his family and a lawyer.

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