Fábio Medina Osório, for “O Globo”: Public Prosecution Service and criminal procedure
Article on the Public Prosecution Service and criminal procedure, addressing the balance between the rights of victims and of those under investigation, O Globo, 2019.
Translated from the original.
The guiding lines of criminal proceedings, in Europe and the United States, signal a growing balance between the rights of victims and of those under investigation. But a differentiation of guarantees can be perceived according to the seriousness of the offenses, given the prevalence of the principle of the supremacy of the public interest over the private.
The presumption of innocence is relativized, admitting an extensive set of precautionary measures in defense of the public interest, but always obeying the principle that decisions lacking consistent reasoning tend to be considered null or arbitrary.
The Public Prosecution Service is a strong institution with distinct formats. It has a progressive role in criminal prosecution, but without occupying arbitrary spaces, owing to the simultaneous strengthening of the role of lawyers in democratic contexts.
The interaction of the MP with the police is the trend in all scenarios, without reducing the prerogatives of defense counsel. And one cannot speak of a Public Prosecution Service without hierarchy, in general. The outlook is for teamwork, as a rule, both in Europe and in the United States.
The separation of the investigative and adjudicative functions is a central feature. To that end, the Judiciary is regarded as an impartial Branch, endowed with attributes linked to independence, and must oversee the police and the MP with respect to fundamental guarantees and rights.
Curiously, some countries admit that judges and prosecutors originally enter the same career and, over time, switch roles. In any case, the notion of impartiality of the Public Prosecution Service is common in legal systems.
In Brazil, we are moving toward the strengthening of institutions, with an independent MP, but still fragmented and with performance permeated by legal uncertainty, given the excessive incidence of the principle of functional independence, to the detriment of institutional unity.
There is no closer interaction between the Public Prosecution Service and the police, as would be necessary. And discretion in criminal prosecution can slide into arbitrariness if there are no adequate controls. It is therefore essential that the MP act under criteria of equality and rationally traceable ones.
Our system is advanced with regard to institutional guarantees, but arbitrary conduct must be combated and democratic controls over oversight institutions fostered.
A common principle in modern Law is the restriction of arbitrariness by Public Authorities. A key point for the maturing of the MP in Brazil is the transparency and uniformity of its administrative case law on agreements (conduct adjustment agreements, plea cooperation agreements, commitment terms), since the boundaries of these transactions are not known with certainty, especially regarding the dialogues held at every stage with those under investigation (which could be documented in audio and video).
Thus, there is still a way to go, which is natural in a democratic regime.
Fábio Medina Osório is a lawyer and was a minister of the Office of the Attorney General of the Union