The Public Prosecutor’s Office has the power to carry out, by its own authority, investigations of a criminal nature. The investigation, however, presupposes communication to the competent judge and compliance with the same deadlines set for the conclusion of police investigations.
STF ministers will close the judgment on the matter next week
This is the understanding of the majority of ministers of the Federal Supreme Court. The court analyzes three actions questioning the MP’s competence for criminal investigations.
The vote of Minister Edson Fachin, rapporteur of the case, prevails in the trial. The analysis was interrupted this Thursday (25/4), but will be resumed next week so that ministers can establish the thesis.
The trial involves three direct actions of unconstitutionality. In the first (ADI 2,943), the Liberal Party (PL) questioned provisions of laws that govern state MPs and the Federal Public Ministry. The party stated that article 25 of the MP’s Organic Law is unconstitutional because it allows civil inquiries and administrative procedures .
ADIs 3,309 and 3,318 were filed by the Association of Police Delegates of Brazil against sections of article 8 of Resolution 77/04. The diploma provides for the organization, duties and status of the MP. It also allows the initiation and processing of criminal investigative proceedings.
Communication and deadline
The case began to be analyzed in the Virtual Plenary of the Supreme Court, but was restarted in person after a request for prominence. Initially, in the virtual analysis, Fachin and minister Gilmar Mendes, dean of the court, disagreed.
The trial resumed on Wednesday (24/4) with a joint vote formulated by the two ministers. According to the position, it is established that, despite the MP’s competence to carry out investigations of a criminal nature, the competent judge must be informed about the initiation and closure of investigative procedures.
The same understanding had already been established when the court decided on the validity of the judge’s guarantees. At the time, it was decided that the MP must inform the judge about the existence of all types of criminal investigations, including preliminary ones.
In Wednesday’s session, however, the discussion on the topic was in-depth. Fachin and Gilmar’s vote establishes, for example, that the investigation must respect the same deadline set for the conclusion of police investigations and can only be extended within a proportional period of time and with due motivation.
The police investigation lasts ten days in the case of an accused person being arrested and 30 days when the person being investigated is free. The MP’s investigative procedure lasts 90 days.
The vote also proposes the modulation of effects so that the need to inform judges begins to take effect after the decision. In cases where there is an ongoing investigation, but no complaint, the MP must inform the competent judge about the existence of the investigation within 60 days from the publication of the trial ruling.
Furthermore, it was established in the vote that the Public Prosecutor’s Office is obliged to initiate investigative procedures whenever there is suspicion of involvement of agents from public security bodies in the commission of criminal offenses or whenever deaths, serious injuries or “other serious consequences occur as a result of the use of firearms by these same agents”.
Finally, Fachin and Gilmar voted for the Union, the states and the Federal District to approve, within two years, laws that grant autonomy to technical expertise bodies, separating the career from the police command.
The two ministers proposed the following thesis:
1) The Public Prosecutor’s Office has the power to promote, by its own authority, and for a reasonable period of time, investigations of a criminal nature, provided that the rights and guarantees enjoyed by any defendant or any person under investigation by the State are respected, 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 8,906/1994, art. 7th, notably items I, II, III, XI , XIII, XIV and XIX), without prejudice to the possibility – always present in the democratic State of Law – of permanent jurisdictional control of the acts, necessarily documented (Binding Summary 14), carried out by the members of this Institution (theme 184);
2) The carrying out of criminal investigations by the Public Prosecutor’s Office presupposes (i) communication to the competent judge about the initiation and closure of the investigative procedure, with due registration and distribution; (ii) compliance with the same deadlines set for completing police investigations; (iii) the need for judicial authorization for possible extensions of time, with disproportionate or unreasonable renewals being prohibited;
3) It is mandatory, under penalty of functional liability, for the Public Prosecutor’s Office to initiate an investigative procedure whenever there is suspicion of involvement of agents from public security bodies in the commission of criminal offenses or whenever deaths, serious injuries or other serious consequences occur in due to the use of firearms by these same agents;
4) In investigations of a criminal nature, the Public Prosecutor’s Office may request the carrying out of technical expertise, and the Union, the States and the Federal District, within two years, must promote legislative measures to ensure the independence and autonomy of the official bodies of criminal investigation. expertise in order to prevent the functional ascendancy of police bodies over the careers of technical-scientific experts.
Joint vote
When defending the MP’s competence, Fachin stated in his vote that the judicial police do not have a monopoly on criminal investigations.
“The monopoly of powers is an invitation to abuse of power. It is a premise that is taken into account here. The attribution for criminal investigation by the MP derives from its own and essential attribution of ensuring respect for fundamental rights”, said the rapporteur of the matter.
The minister highlighted, however, that the recognition of the MP’s competence does not authorize disrespect for the fundamental rights of the person being investigated during investigations.
“The guarantee (of rights) depends on judicial protection, whether for the production of evidence submitted to the reservation of jurisdiction, or for the preliminary phase to be concluded as quickly as possible.”
Divergence
Fachin and Gilmar were supported on almost all points of their vote. Minister Flávio Dino, however, proposed changes to the thesis. For him, the extension of investigations only needs to occur in the case of an investigated person being arrested.
He also spoke out against the MP’s obligation to investigate crimes committed by public security agents. For Dino, the wording of the thesis must have a similar meaning to that defined by the Inter-American Court of Human Rights in the case “Honorato et al. x Brazil”.
At the time, it was determined that Brazil must structure internal areas of the MP so that the body can adequately exercise external control of the police. There is, however, no provision for punishing prosecutors for failure to investigate crimes committed by public security agents.
Dino also suggested that the thesis include the need to adopt a mechanism for the police, MP and Judiciary to avoid, “as much as possible”, investigative duplicity.
Immediate communication
Minister Cristiano Zanin accompanied the rapporteur, but stated that an excerpt should be added to the thesis explaining that communication about new investigations by the MP must be immediate.
Minister Alexandre de Moraes also accompanied Fachin, but also made suggestions for the thesis. According to him, the concurrent role of the MP with the judicial police to conduct investigations of a criminal nature must be defined.
Like Dino, Alexandre also understood that the MP has functional autonomy to decide whether or not to initiate an investigative procedure involving public security authorities.
Ministers André Mendonça, Dias Toffoli, Luiz Fux and Cármen Lúcia also accompanied the rapporteur, following the reservations of Dino, Zanin and Alexandre. The vote of Minister Luís Roberto Barroso, president of the STF, and the definition of the thesis are missing.
Click here to read Fachin and Gilmar’s joint vote
ADI 2,943
ADI 3,309
ADI 3,318
