It is necessary to measure the effectiveness of the Public Prosecution Service

PEC 37 was an eminently political initiative, insofar as the criminal investigative power of the Public Prosecution Service could not be conceived as an entrenched clause (cláusula pétrea). The rejection of PEC 37 came about for political, not legal, reasons. The skill of members of the Public Prosecution Service in using social media and in crafting a language accessible to the people was one of the causes of legitimation of its criminal investigative power. The police institutions were unable to justify exclusivity in investigations through a hermetic language full of technicalities.

In my view, criminal investigative power is a prerogative implicit in the Constitution which, in light of the democratic principle, may undergo substantial changes, with redistribution of activities and powers to other institutions. However, the amendment of Article 144 of the 1988 Constitution would not inhibit the effectiveness of Article 129 of the Constitution. The presence of implied powers is an eloquent reality. The reorganization of the institutional powers of the Public Prosecution Service or of the Police could not strictly be regarded as an activity constitutionally barred by some immutable clause, since there is no deliberation by the Constituent Assembly to that effect. Hence the reason why the debate around PEC 37 was waged in the political field, in which the authentic focus had to be the interest of society represented in Parliament. And its rejection reflected a perspective of strengthening the Brazilian Public Prosecution Service. In any event, the technique of amending the Constitution to remove implied powers would have to be carefully thought through.

It should be noted that PEC 37 dealt with the so-called criminal investigative powers of the Public Prosecution Service, but did not inhibit the institution's investigative powers in general, which are indeed rooted explicitly in the Constitution as one of the institutional functions essential to the Public Prosecution Service. This means that the Public Prosecution Service has unquestionable powers to conduct its investigative proceedings, informational documents or civil inquiries, instruments it uses abundantly in protecting diffuse and collective interests. In these settings, the institution may request documents, information, expert examinations and inspections, question persons, including through letters rogatory, hold public hearings and issue recommendations, and it already did so under Law 7,347/1985, the Public Civil Action Law, later reinforced by various other governing norms.

This situation produced a scenario that was curious, to say the least: if it did not have criminal investigative powers, the Public Prosecution Service could investigate unlawful acts through public civil inquiries and, in that context, send informational documents to the prosecutors with duties in the criminal sphere, who would be entitled to file an indictment dispensing with the police inquiry, as is known. Indeed, the Public Prosecution Service may even file an indictment dispensing with the police inquiry, that is, relying on the informational documents gathered in a civil inquiry, just as it may rely on administrative investigations conducted by other institutions. One must therefore ask whether the investigative power was ever actually threatened at any point.

The civil inquiry finds direct support in the 1988 Constitution (article 129, II) as one of the essential functions of the Public Prosecution Service and, in that sense, may perhaps be regarded as a republican instrument inseparable from the institution and its constitutional duties. The areas that can be defended through the protection of diffuse interests are as varied as possible: the national financial system; the economic order; the environmental order; the competition system; public assets; minority rights, among others that may fall within the concepts of diffuse or collective interests. A good share of the investigations of the Brazilian Public Prosecution Service can be closed with conduct adjustment agreements, which are basically agreements through which the institution forgoes litigation and the investigated party accepts in exchange a certain burden agreed in the instrument, which constitutes an extrajudicial enforceable title.

However, it is also necessary to measure the effectiveness of the Public Prosecution Service in the civil area, because I perceive that the debate has been guided above all by media news. There is no doubt that the Public Prosecution Service's work has improved the regulatory environment, apparently reducing impunity rates, since we are dealing with an independent and autonomous institution. However, there are many questions pending answers and critical assessment, such as those concerning the institution's own autonomy in handling its duties, not to mention the results of the institution as a whole. Much is said about the distortions of the privileged forum, but it is imperative to reflect on the role of attorneys general in light of the prerogative of some classes of persons, who may be prosecuted only on their initiative. Assessments should be directed at improving the institution.

Here I dare to list some questions to provoke debate:

a) How many conduct adjustment agreements are currently being enforced in Brazil?

b) What are the objects of the terms of adjustment of conduct? What sanctions are provided for their non-compliance?

c) How many civil inquiries, information files, or civil investigative proceedings are pending in the Brazilian Public Prosecution Service, what is the date of their opening, and what is the subject matter?

d) How many improbity actions are brought by attorneys general of Justice against governors?

e) How many public civil actions are pending and what is the statistically assessed subject matter of this set of actions? Is there a qualitative classification of these actions, their claims, their subject matter?

f) How many judgments or appellate decisions were issued in matters of public civil actions filed by the Public Prosecution Service, and what is the statistical result in terms of success (total or partial) or dismissal?

g) What criteria does the Brazilian Public Prosecution Service use to fill specialized positions in the defense of diffuse and collective interests?

h) What controls does the institution exercise over those most exposed to the pressure of economic or political power in the sensitive area of diffuse and collective interests?

In short, the political moment is propitious for deepening reflection and abandoning any merely rhetorical, angry or marketing-driven posture. Institutions must have the humility to take part in a constructive critical debate whose addressee is the Brazilian people.

Fábio Medina Osório is a lawyer, holds a doctorate in Administrative Law from the Complutense University of Madrid, and is president of the International Institute of State Law Studies (IIEDE).

Revista Consultor Jurídico , 5 July 2013