Entity defends veto of conviction by judge if MP is against

A Anacrim (National Association of Criminal Advocacy) filed a lawsuit with the STF (Supreme Federal Court) asking that a judge be prohibited from imposing a sentence on a defendant in the absence of the Public Prosecutor's Office. The petition was filed on January 24 and is under the rapporteur of Minister Edson Fachin.

The association contests an article in the Code of Criminal Procedure that establishes that a conviction can be handed down regardless of whether the Public Prosecutor's Office is in favor of acquittal.

According to Anacrim, the “initial impulse” carried out by the body in the accusation is not enough for the judge to decide whether or not there is evidence for conviction or even for the continuation of the action.

“In the adversarial structure, the jurisdictional body is to decide cases and issues; if there are none of them (when the Public Prosecutor asks for acquittal, for example), he, the judge, has nothing to decide. The initial impulse — always in the accusatory structure — is not enough for him, the judge, to decide when there is no issue or even a criminal case. So much so that if the Public Ministry wants (and it is permitted by law), can withdraw the accusation and the case must be archived. This is not unknown in Brazil: there are already hypotheses like this in processes resulting from private initiative action”, says an excerpt from the petition. Here's the complete (PDF – 588 kB).

The association also asks the AGU (General Attorney's Office), the National Congress and the PGR (General Attorney's Office) to comment on the request.

The action is in the initial stages and there is no forecast for trial, but lawyers are already defending the Court's favorable position on the issue.

Lawyer Bruno Borragine, partner at Bialski Advogados, assesses that the judgment on the matter “it will serve as a correction to yet another remnant of the authoritarianism that still exists in the criminal process”. According to the lawyer, if the Public Prosecutor's Office requests acquittal, there is no “legitimate possibility” for the judge to decide whether to sentence.

“This is because, obviously, the judge cannot judge without a request, that is, convict when there is a request for acquittal by the accusation itself. Technically, if you do so, there will be a direct violation. There is a principle of separation of functions between the prosecution and the judge. The judge can punish, but subject to the MP’s request.”says Borragine.

Lawyer Lenio Streck, professor and founder of Streck & Trindade Advogados Associados, states that the action should have already been filed.

“This is a revolution in the criminal process. We hope that the Public Ministry, for example, will support the action. He will have more power. You will have to act as a party. He will have to have more responsibility. Power always represents responsibility. There is already experience in comparative law – and this was said in our petition – in this sense. The person in charge of the criminal case requests acquittal and the judge must comply, just as in civil proceedings. If the party withdraws its action, why would the judge not agree?”he asks.

André Damiani, a criminalist specialized in Economic Criminal Law and LGPD (General Data Protection Law), argues that the magistrate cannot “extrapolate” the functional limit determined by the Federal Constitution to decide on the request.

“If the Public Prosecutor's Office, holder of the criminal action and solely responsible for formulating the accusation, declares that the action is unfounded, such as, for example, considering that there are doubts regarding the authorship of an alleged crime, the magistrate cannot exceed his functional limit and decide beyond the request of the parties, under penalty of transforming the Brazilian criminal system into a true inquisitorial court, in which the one who judges also accuses, as happened in the times of the Inquisition”he states.