Investigative Power of the Public Prosecution Service

In Brazil, discussions about the format, prerogatives and duties of republican institutions tend toward a regrettable contamination by corporatist shades. In the case of PEC 37, for example, involving the so-called investigative power of the Brazilian Public Prosecution Service, this distortion is clearly perceived. On one side, the Public Prosecution Service argues that its investigative power would be Brazilian society’s guarantee against impunity. On the other, various segments, among them representatives of police corporations, politicians or even, and surprisingly, the Federal Council of the OAB, defend an exclusive attribution of the police in the investigative field.

At bottom, this is a dispute over institutional spaces, relegating the authentic public, social and diffuse interests to the background. In the end, legally, the logical pertinence of the Public Prosecution Service's investigative power can be sustained on the basis of the theory of implied powers. It is only necessary to recover a certain hermeneutic bias, which seems to me the most correct. Whoever can do the greater can do the lesser. It is possible to defend, however, an interpretation along the lines of exclusive police power, starting from different hermeneutic premises, among them an apparent constitutional literalness. Which of them should prevail? PEC 37 surely takes the whole discussion to a political level, insofar as the investigative power of the Public Prosecution Service could hardly be regarded as an entrenched clause, although, in my view, it exists today in the 1988 Constitution as an inevitable consequence of its ownership of public criminal action and of a systemic view of constitutional norms.

If the debate is political, as it involves a Constitutional Amendment proposal, it seems prudent to outline its complexity. I reaffirm that the investigative power of the Public Prosecution Service cannot be defended or attacked for corporatist reasons. It must be questioned more deeply, with the aim of verifying its adequacy in terms of social, public and diffuse interests. There is no doubt that a strong institution, such as the Public Prosecution Service, endowed with investigative power, broadens, in theory, the scenarios resistant to impunity. Its independence from the Executive Branch facilitates this reading. Far from any Manichean perspective, it may be important for the Public Prosecution Service itself to reflect on the causes of such a heated debate in the National Congress and in Brazilian society, going beyond the idea that two kinds of people dislike the Public Prosecution Service: the ignorant, because they do not know it, and criminals, because they know it well. The criticisms come not from the ignorant or from criminals, but from the true holders and recipients of every public service: those who make up organized civil society. It is important to foster humility in institutions, which would be a valuable ingredient in these debates.

It should be stressed that some questions need to be better clarified by the institutional leaders of the Brazilian Public Prosecution Service, shifting the debate from the political field of marketing to the terrain of concepts. What is the real quality of the institution's investigations? How many proceedings exist in Brazil? Are there qualitative statistics on the subject? What is the classification of the matters investigated? A quantitative and qualitative statistical survey would be important to warm up this debate, since some say there is a certain level of selectivity in prosecutorial investigations. The quality of the Public Prosecution Service's investigative work cannot be diagnosed without a consistent statistical base. Note that, based on scientific studies, the idea defended here would not be to liquidate, on the political plane, the power to investigate, but to identify the real distortions in order to correct them.

Other relevant questions concern the coherence of investigations with police work and inter-institutional harmony. It is known that the police and the Public Prosecution Service, as parts of the State, must act in an integrated manner; indeed, the purpose of external control is not, and never was, hierarchy, but rather the reciprocal checks implicit in the separation of powers. Imagine a member of the Public Prosecution Service investigating the very same fact already under police investigation, with an interface of precautionary measures, such as search and seizure or wiretaps. Is there no need for harmony, coherence and dialogue among the institutions? Has there been such coordinated action?

What results have already been obtained, in Brazil, from Public Prosecution Service investigations? This question must not serve as a motto to demoralize the institution, but above all to improve it. Are there courses, in the Brazilian Public Prosecution Services, involving investigative techniques? Does the Public Prosecution Service know how to investigate? In the entrance examinations, is this discipline, which involves the Science of Criminal Investigation, required of candidates?

How has the Public Prosecution Service’s investigative power been exercised in relation to its own members? What are the statistics at the Internal Affairs Offices and, very especially, at the National Council of the Public Prosecution Service? Are there rates of time-barred cases?

The right questions must be asked, so that we may reach the answers closest to the desired public interest. There is, indeed, a sense that in Brazil there has been a strengthening of the oversight institutions, and in recent years this environment has become increasingly robust. Our institutional agenda progressively involves a perspective of independent institutions, endowed with autonomy and respected in their prerogatives, duties and safeguards. Political setbacks cannot be admitted, and it would certainly be a setback to approve PEC 37 without a deeper debate on the police and the Public Prosecution Service in Brazil.

Simply annihilating the prerogatives and powers of an institution as relevant as the Public Prosecution Service, without an in-depth examination of the underlying causes, would be reckless.