The police inquiry in Brazil is an administrative police procedure created by imperial decree 4.824/1871 and provided for in the Brazilian Code of Criminal Procedure as a fundamental investigative procedure of the Brazilian judicial police (Brazil). It investigates (examines) a certain crime and precedes the criminal action, being commonly considered as pre-procedural, although it is part of the criminal process. The police inquiry is a written procedure presided over by the police authority, who is the police delegate. It consists of evidence of the authorship and materiality of the crime, which are commonly produced by the police authority and by the agents of the police authority (police investigators, criminal experts, police officers, police clerks, police papillary experts).
Definition The police inquiry is the procedure of judicial police aimed at establishing the real truth of an allegedly criminal fact. Its purpose is to gather the necessary elements (evidence) to investigate the commission of a criminal offense and its authorship (authorship and materiality).Mirabete, Júlio Fabbrini. Código de Processo Penal Interpretado. Ed. Atlas, São Paulo. 2000. Provided for in articles 4 to 23 of the Code of Criminal Procedure, it is the formal instrument of investigations, comprising a set of diligences carried out by agents of the police authority and by the police authority itself (police delegates) to investigate the criminal act and discover its authorship or the atypicality or any cause excluding unlawfulness or culpability. In summary, it is the documentation of the diligences performed by the judicial police, arranged chronologically and filed with the records that document the investigations.
Once the police inquiry is initiated, it is the duty of the police authority to take certain measures capable of investigating the criminal offense. According to the subparagraphs of Article 6 of the Code of Criminal Procedure, these measures are as follows:
go to the scene, taking steps to preserve the state and condition of things until the arrival of the criminal experts; seize the objects related to the fact, after they have been released by the criminal experts; gather all the evidence that serves to clarify the fact and its circumstances; hear the victim; hear the accused, observing, where applicable, the provisions of Chapter III of Title VII of this Book, with the respective record being signed by two witnesses who have heard it being read; conduct identification lineups and confrontations; determine, if necessary, the carrying out of a body examination and any other expert examination; order the identification of the accused through dactyloscopy, if possible, and attach to the records their background sheet; investigate the previous life of the accused, from an individual, family and social point of view, their economic condition, their attitude and state of mind before and after the crime and during it, and any other elements that contribute to the assessment of their temperament and character.
There is no specific order to follow when carrying out the diligences, as the legal provision is merely exemplificative. These diligences are discretionary, that is, they depend on the peculiarities of the specific case. However, such discretion is not absolute, as there are diligences whose execution is mandatory, such as the examination of the body in offenses that leave traces (Article 158, Code of Criminal Procedure).
In addition to the police inquiry prepared by the judicial police, there are other modalities of inquiries of a criminal and civil nature, existing in the Brazilian legal system. The extrapolicial inquiries are those procedures not prepared by the judicial police, namely:Tourinho Filho, Fernando da Costa. Processo Penal, 13ª ed. Ed. Saraiva, São Paulo. 1992.
the military police inquiry, chaired by military personnel with the aim of investigating exclusively military crimes; the judicial inquiry in bankruptcy cases, chaired by the judge, but no longer in existence due to changes in the bankruptcy law. the expulsion police inquiry, an administrative procedure with ample defense conducted by the Federal Police of Brazil aiming to gather evidence and information for the Minister of Justice of Brazil to decide whether to deport or not a foreigner who has committed a criminal offense on national territory. the civil inquiry, which aims to gather evidence for the proposition of a civil class action for damages caused to the public heritage, the environment, and other collective and diffuse interests, chaired by a member of the Public Prosecutor's Office in Brazil.
Its purpose is to provide the prosecution with the necessary elements, through the investigative elements it contains, to form the suspect of the crime, the just cause required by that body to file the criminal action. Together with other probative elements, it will guide the prosecution in the collection of evidence that will take place during the procedural instruction.
The police inquiry has an administrative nature. Its characteristics are: being written (Article 9 of the Code of Criminal Procedure); confidential, with the exception of judges, members of the Public Prosecutor's Office, and lawyers (Binding Precedent No. 14), being an exception to the principle of publicity (Article 20 of the Code of Criminal Procedure) and inquisitorial, as there is no contradiction and full defense in it; not available (Article 17), since it is not up to the police authority to determine, on its own, the termination of the police inquiry. It is true that Article 5, LV of the Federal Constitution provides that "litigants, in judicial or administrative proceedings, and the accused in general, shall be guaranteed the contradictory and full defense, with the means and resources inherent to them." Nevertheless, it cannot be said that the inquiry is contradictory. First, because in the inquiry there is no accused person; second, because it is not a process, but a procedure. The expression "administrative process" has another meaning, also because in the inquiry there is no litigant, and the Constitution speaks of "litigants in judicial or administrative proceedings."TOURINHO FILHO, Fernando da Costa. Manual de Processo Penal, 2001, São Paulo: Editora Saraiva, p. 49.
The lawyer is entitled to consult the records, but is not allowed to attend the acts.
Another purpose of the police inquiry is to provide probative elements to the judge. The judge will assess the evidence, even those collected without judicial contradiction. Also, in order to allow the decree of preventive detention, whether temporary, during the police inquiry, in accordance with Law No. 7.960, of December 21, 1989, or preventive detention, during the inquiry or the criminal instruction, in accordance with Article 312 of the Code of Criminal Procedure.
Garantist (modern) Definition of the Police Inquiry This current, led by professor Henrique Hoffmann, based on the guarantee perspective of the protection of fundamental rights prescribed by the 1988 Federal Constitution, in line with Law 12.830/2013, defines the Police Inquiry as an administrative process chaired by the natural police delegate, investigative, informative, and probative, indispensable, preparatory, and preservative. The arguments for these characteristics are:
Administrative process and not just a procedure: although it does not involve a formal dispute with the prosecution, it is considered an administrative process sui generis, considering the possibility of restrictions on the fundamental rights of the suspect linked to the prognosis and diagnosis made by the police delegate in this pre-indictment phase; Presided over by the natural police delegate: in light of Article 2, §§4 and 5 of Law 12.830/2013, the delegate in charge of specific police inquiry acts can only be the one defined by pre-established rules, prohibiting arbitrary avocation and redistribution. Investigative and not inquisitorial: the definition of inquisitorial is limited to arbitrary interrogation, which disregards the free will and the right to silence of the suspect. This term is incompatible with the contemporary police inquiry subject to constitutional guidelines. The term investigative is more appropriate as it incorporates investigation, examination, selection, counting, and other terms that better suit the investigative activity of this process; Informative and probative: in addition to the informative nature concerning the elements of information that require subsequent judicial validation (contradiction and full defense), there are the evidence produced in this pre-indictment phase that are irreproducible and anticipated; Indispensable: Indispensability is the rule, dispensability is the exception. The Code of Criminal ProcedureCódigo de Processo Penal, Decreto-lei nº 3698/41, art. 12 and jurisprudence clearly establish that the police inquiry will only be dispensable when the indictment or complaint contains sufficient elements for the indictment, which in practice rarely occurs. Preservative and preparatory, not just preparatory: The police inquiry is not exclusively committed to preparing the accusatory document, it goes much further, serving as a filter to prevent unfounded accusations and baseless imputations. In addition, the probative and informative elements serve both the prosecution and the defense since the investigation's primary purpose is to seek the truth. The judicial police, as an impartial body, has no hierarchical link with the Public Prosecutor's Office but a functional progression.
Cases where the Police Inquiry is Unnecessary
Considering that "the police inquiry is an administrative procedure conducted by the judicial police and aimed at the preliminary gathering of evidence to investigate the commission of a criminal offense and its authorship,"NUCCI, Guilherme de Souza. Código de Processo Penal Comentado. 3ª ed. São Paulo: RT, 2004, p. 67. it can be concluded that in cases where the holder of the criminal action – the Public Prosecutor's Office or the victim – has, regardless of the intervention of the judicial police, sufficient elements to file the accusatory document, the police inquiry is dispensable.
Thus, the cases in which the police inquiry is dispensable, as provided for in the Code of Criminal Procedure, are as follows:2 LIMA, Renato Brasileiro de. Curso de Processo Penal. 1ª ed. Rio de Janeiro: Impetus, 2013, p. 79.
1. Article 12: "The police inquiry shall accompany the indictment or complaint whenever it serves as the basis for either."
From the content of the article, it can be accurately concluded that in cases where the inquiry does not serve as the basis for the indictment or complaint, the inquiry is unnecessary for the investigative procedure.
2. Article 27: "Any person may initiate action by the Public Prosecutor's Office, in cases where public prosecution is possible, by providing written information about the fact and its authorship and indicating the time, place, and elements of conviction."
Therefore, if a person provides the Public Prosecutor's Office with sufficient information to file the indictment, the police inquiry becomes dispensable.
3. Article 39, § 5: "The Public Prosecutor's Office shall dispense with the police inquiry if the representation includes elements that enable it to initiate criminal proceedings and, in this case, shall file the indictment within 15 (fifteen) days."
The clarity of the article indicates that if the representation contains sufficient elements for the filing of an indictment, the Public Prosecutor's Office can dispense with the police inquiry.
4. Article 46, § 1: "When the Public Prosecutor's Office dispenses with the police inquiry, the deadline for filing the indictment shall be counted from the date on which the information or the representation is received."