Investigative power of the Public Prosecution Service

In 2015, the STF, by majority, in REXT 593,727, recognized that the Public Prosecution Service has the power of criminal investigation, “provided that the rights and guarantees that assist any suspect and any person under investigation by the State are respected, with its agents always observing the cases of constitutional reservation of jurisdiction, as well as the professional prerogatives with which lawyers are invested in our country,” without prejudice to the possibility of judicial review of acts necessarily documented (binding precedent 14).

It was a historic achievement of the Brazilian Public Prosecution Service, which has always maintained this legal possibility given the need to investigate wrongdoing autonomously and independently, without prejudice to the prerogatives of the police authorities. The Public Prosecution Service and the police work ever closer together, given the external oversight of the police by the parquet and the exclusive prerogative to bring criminal actions held by the Public Prosecution Service under the 1988 Constitution.

It is true that, in the aforementioned REXT (extraordinary appeal), Justice Marco Aurélio was the dissenting vote, as he stressed that the Public Prosecution Service would have no support to act in the field of criminal investigation “autonomously.” The Justice said it would be inconceivable for a member of the Public Prosecution Service to put a “star on his chest” to “arm himself” and investigate. “Being the holder of the criminal action, he will tend to use only the evidence that serves him, ignoring the rest and, obviously, harming the adversarial principle and disregarding the principle of equality of arms,” he asserted in his vote after review of the case file.

Comparative law admits the investigative power of the Public Prosecution Service, a topic that has been settled in Brazil. Greater concern has arisen with other institutions that, not infrequently, usurp the criminal investigative power of the Public Prosecution Service, under the pretext of carrying out administrative investigations. What one observes today is a misuse of purpose in the conduct of other institutions, which seek to carry out criminal investigations through their administrative apparatuses, which is a serious mistake. For the criminal sphere, there are the Public Prosecution Service and the police.

There is evidently no power without limits, and the investigative power of the Public Prosecution Service begins to be regulated in CNMP Resolution 181/17, bearing in mind that each state prosecution office has its own law that applies. The normativity of the investigative power tends to be dense. That Resolution confers important powers on members of the Public Prosecution Service, but also grants them limits, not always respected. Proceedings should preferably be handled electronically, unless impossible. They are opened by a reasoned order, circumscribing the object and the initial measures. Testimony must be taken by audiovisual recording, in order to obtain greater fidelity of the information provided.

Binding Precedent 14 of the STF is a good guide. The right of the person under investigation to be heard, at some point, and before that to have access to the evidence already documented against him, is a logical consequence of what was established in the extraordinary appeal judged by the STF. Certainly no one may interfere with the authorities' investigative program, nor break the secrecy of ongoing investigations in order to monitor the authorities' conduct. However, the right to be heard, even if it is not confused with any semblance of adversarial proceedings, derives from administrative due process. Resolution 181/17 itself guarantees the defense counsel's right to examine the files of criminal investigations, concluded or ongoing, in physical or digital form, with the ability to copy documents or take notes. When secrecy is decreed, counsel must present a power of attorney. That is, everything documented in the case file will be within the reach of the lawyers.

Respect for the legal prerogatives of those under investigation is another basic guarantee inherent in administrative proceedings. Likewise, the duty to state reasons for administrative acts may be cited. Many unilateral acts are performed, including under judicial secrecy and in disregard of the adversarial principle, such as breaches of bank or telephone secrecy, in the course of an investigative program. The guarantee of transparency of reasoning as a pillar prohibiting the arbitrariness of public authorities is one of the structuring elements of the Democratic Rule of Law.

Rules concerning jurisdiction, the existence of elements of the figure of criminal law of the act, bureaucratic procedures relating to the natural prosecutor, and respect for the governing legislation must be observed. It must not be forgotten that the principle of accountability of overseers prevails, as a consequence of the republican principle. Arbitrary acts may give rise to civil, administrative, and even criminal liability of members of the Public Prosecution Service.

The probity of those who oversee is a republican requirement common to civilized countries. No approval of a new normative model for the liability of prosecutors for abuse of authority or administrative improbity is necessary, since the current system already allows abusive conduct to be classified accordingly. It suffices that the law be correctly applied to offenders. The National Council of the Public Prosecution Service has been a paradigm of firm action in overseeing possible deviations in conduct. And the members of the Public Prosecution Service themselves oversee their peers.

Fábio Medina Osório, lawyer and former minister of the Office of the Attorney General of the Union