The Public Prosecutor's Office can investigate, but with limits, says Gilmar.

By Pedro Canário
Counsel - Constitutional rules regarding investigations do not prevent the Public Prosecutor's Office from presiding over the inquiry or conducting its own investigation, provided that this action is controlled and regulated. Similarly, nothing prevents the defendant from gathering evidence to build their defense in criminal proceedings. This is the understanding of Supreme Federal Court Justice Gilmar Mendes, rapporteur of a Habeas Corpus Appeal requesting the annulment of evidence gathered in a criminal case because it was collected directly by the Public Prosecutor's Office, without police involvement.

The case is in the Second Panel, and so far only the rapporteur's vote has been cast. After Justice Gilmar Mendes' vote, Justice Ricardo Lewandowski requested to review the case files, interrupting the judgment. In his vote, Gilmar states that Article 129 of the Federal Constitution, which deals with the duties of the Public Prosecutor's Office, although it does not explicitly mention investigations by the body, does not prohibit them. Furthermore, the interpretation of the Code of Criminal Procedure and Complementary Law 75/1993, which deals with the organization of the Federal Public Prosecutor's Office, allows the conclusion that the Public Prosecutor's Office can investigate.

“Considering the power and duty conferred upon the Public Prosecutor's Office in defending the legal order, the democratic regime, and the unavailable social and individual interests (article 127 of the Constitution), it seems to me that relative autonomy for gathering evidence, as indeed conferred upon it by infra-constitutional legislation, is inseparable from its functions,” the minister wrote in his opinion.

The main argument against the Public Prosecutor's Office conducting the investigation is the imbalance between prosecution and defense. If the Public Prosecutor's Office is the body responsible for filing the indictment and then for making the accusation during the criminal process, it cannot also be the entity that presides over the inquiry and gathers the evidence. This situation, say criminal lawyers, puts the defendant in an unfavorable position, since he finds himself investigated, indicted, and accused by the same body.

But, according to Minister Gilmar Mendes, the argument doesn't hold up. In his vote, he states that the investigation by the Public Prosecutor's Office does not unbalance the process, as it will always be subject to judicial control, "simultaneous or subsequent." This stems, according to the minister, from the fact that the possibility of a party gathering evidence to support their own defense is "inherent to the dialectical system of the process." "Ipso facto, it could not be different with regard to the Public Prosecutor's Office."

limitations

Although he defends the investigative power of the Public Prosecutor's Office, Minister Gilmar Mendes insists that there must be ways to control and limit this power. For him, the activity of investigating "deserves, by its very nature, vigilance and control."

The minister argues that the investigative activity of the Public Prosecutor's Office should be subsidiary to that of the police. The office should only be called upon in cases where the police cannot investigate, or when its involvement in the case is not "advisable." Examples cited by Gilmar Mendes include investigations of damage to public assets, excesses committed by police officers (abuse of power, torture, corruption, etc.), or police negligence.

Gilmar also suggests that regulation of investigations by the Public Prosecutor's Office should require the body to formalize the investigative act; formally notify the chief prosecutor or attorney general as soon as the investigations begin; number the files of investigative procedures for control purposes; publicize all acts; formalize all acts; ensure the right to a full defense, among other things.