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).
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.
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."
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.
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.
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."
The aforementioned article regulates the deadline within which the indictment must be filed in cases where the police inquiry is dispensed with due to the sufficiency of the elements contained in the information provided by a person or in the representation.
The police authority that becomes aware of an occurrence shall draw up a detailed record and immediately forward it to the Juvenile Court, along with the offender and the victim, taking the necessary steps to request any necessary expert examinations.Article 77.
In this regard, the following lesson deserves attention: The police authority must draw up a detailed record of the occurrence, that is, prepare a report of the fact considered a crime of minor offensive potential.
Thus, unlike the boletim de ocorrência (occurrence report), the detailed record, along with its accompanying elements, constitutes the actual informatio delicti, that is, the necessary instrument intended to provide the elements for the exercise of the right of action by the prosecuting authority (the Public Prosecutor's Office in public criminal cases and the victim in private criminal cases).
"[13] Capez also mentions that "the only investigation that allows adversarial proceedings is the one initiated by the Federal Police, at the request of the Minister of Justice, aiming at the expulsion of a foreigner (Law No.
"[15] Similarly, Alencar and Távora state that "the investigation is inquisitorial: prosecutorial activities are concentrated in the hands of a single authority, and there is no opportunity for adversarial proceedings or a full defense.
The thirty-day period for the accused who is free starts from the date the police authority receives the request, application, or from the day they become aware of the matter.
The judge, after hearing the Public Prosecutor's Office or the complainant, if applicable, will determine the return of the records, setting a new deadline for their conclusion.
Fernando da Costa Tourinho makes the following observation: The law speaks of returning it to the Police for further inquiries when the matter is difficult to elucidate.
Inquiries conducted by the Federal Police, when the accused is in custody, have a deadline of 15 days for their conclusion, which can be extended once for the same period, according to Law 5.010/66.
If the inquiry is not concluded within the fixed term established by law, in addition to the measures that can be taken against the negligent authority, the accused or someone on their behalf can file a writ of habeas corpus, based on Article 648, II of the Code of Criminal Procedure.
Regarding the accused under pretrial detention (Code of Criminal Procedure, Articles 311 to 316), the inquiry must be concluded within 10 days from the date the arrest warrant is executed.
After the criminal investigation is concluded, in the case of offenses with private prosecution, the inquiry records must be sent to the competent court, and according to Lopes (2010 p. 291/292): [...] remaining available to the victim or even delivered by way of transcript.
[...] However, it is not necessary for the victim to request the archiving; it is enough to let the statutory period lapse.As taught by Aury Lopes Jr, in the case of offenses that entail public prosecution, the police authority must, after concluding the police inquiry, forward the records to the Public Prosecutor's Office, along with the tools used to commit the offense and all other objects that may serve for definitive instruction and trial.
The Code of Criminal Procedure establishes, in Article 17, that the police authority cannot archive the inquiry records, nor can the judge determine it suo motu.
[...]It is important to note that the Public Prosecutor's Office's request for archiving must comply with the requirements contained in Article 395 of the Code of Criminal Procedure, as well as include elements that rule out the incompetence of the initial complaint and provide data that can identify the agent.
This is because, even after the inquiry is archived, according to Article 18 of the Brazilian Code of Criminal Procedure, the police authority can continue the investigation, conducting new research that may lead to the emergence of new evidence and, consequently, a request for the reopening of the inquiry to the Public Prosecutor's Office, as it has the final say regarding the archiving and is responsible for deciding on a possible reopening.
Therefore, Marcellus Polastri Lima, in his Manual of Criminal Procedure, highlights on page 131 the understanding of the Superior Court of Justice on the subject: The silence of the Public Prosecutor's Office regarding accused individuals whose names only appear later in an amendment to the indictment does not imply archiving concerning them.