The corrective activity, as is known to those who work in this area, has aroused countless and heated debates in the country’s Forums and Courts, which is often due to the confusion between the typical and atypical function of the Judiciary Branch, which becomes patent in a large number of questions about the subject, as we will seek to present in this work, with emphasis on corrective police activity, even more because it would not be careful to exercise typical activity of the Judiciary, that is, jurisdictional.
In relation to this, a question that, often in forensic practice, is apt to generate confusion, would be that is to say, to establish limits between the typical fields of two radically different bodies, which would be the Civil Police Corregidor and the Judicial Police Corregiment (incidentally, the very advent of the norm contained in Article 144 and its members of the Political Charter already affirms in the meaning that the police preventive – security and judicial, will be auxiliary organs of the Judiciary, but are not hierarchically subordinate to it, but rather, to the Governor of the State – that is, holder of a popular mandate for the exercise of activity of the Administration Public).
One of them, the latter, exercised by the Judiciary and another exercised by a proper body of the Civil Police, in which the police officer is attached (he does not take care of competing bodies, but each with its own distinct sphere of attribution), without prejudice to other civil or criminal measures to be initiated in their own ways, as the case may be.
In fact, it is not denied that the genesis of the confusion in the tessle may be related, precisely, to the fact that, in the case of the Judiciary, the exercise of an atypical function is taken care of, then, as it is, in a Democratic State of Right, the foundation of legitimacy the Judiciary would exercise the exercise of a power (therefore act of state sovereignty) linked to the activity of saying right ( júris dicere, meaning literal in relation to the exercise of jurisdiction), in an impartial manner.
The exercise of a supervisory function was not an activity of its own, but on the contrary an atypical function deriving from the law, since, as is well known, such a function would be closer to the Executive Branch to which the police agencies are linked, but with it, by no means becoming confused.
So much so that there is no doubt as to the fact that the Judicial Police, regardless of the name is an agency of the Executive Power, behold the name itself indicates, police would derive from the Greek police, in allusion to the polis, or City-State Greek.
That is to say, in this sense, what is observed would be a situation in which the activity in question would be eminently administrative, remote derivation of the police power in the general public administration, being certain that historically the name derived to the own organ that maintains the order public.
With regard to the generic character of the expression, to ask for a way to ponder the ever present conception of José Cretella Júnior, which points out:
In general, police is the generic term for the organized force that protects society, freeing it from all disquieting visions…. During the Middle Ages the meaning of the word changed, having been used to designate civil society under the authority of the State, as opposed to the good moral and religious order of the exclusive competence of ecclesiastical authority. Later, in France and Germany, the police and the Polizei came to designate the right of the sovereign and the feudal lord to watch over, in every possible way, for the welfare of those under his orders.
On the subject, with specific delimitation, it is important the distinction punctuated by Fernando da Costa Tourinho Filho, in the sense that:
In Rome, the term politia has acquired a special meaning, meaning government action in the sense of “maintaining public order, tranquility and internal peace”; later, it went on to indicate “the state body itself responsible for ensuring the safety of citizens”.
The author continues to separate the activities of police action in the current context, in the legal order of the country, pointing out:
But while the Security Police is trying to prevent the disturbance of public order by adopting preventive measures, a true prophylaxis of crime, the Civil Police intervenes when the facts that the Security Police did not even imagine could happen. Until then, the Police in charge of this task was denominated Police Judiciary. However, the Federal Constitution, in art. 144, par. 4, provides that “the civilian police, directed by career police chiefs, incumbent, except for the competence of the Union, the functions of the Judicial Police and the investigation of criminal offenses, other than military.” The primary function of the Civil Police is to determine the criminal offenses and their authorship.
In this sense, it is worth noting the assertion made by Álvaro Lazzarini:
The Judicial Police corresponds to the police activity developed after the outbreak of the criminal offense, with the purpose of assisting the Criminal Justice in its final activity, which is the application of criminal law. The Judicial Police activity is focused on the accomplishment of the criminal procedural scope although it is of a clear administrative and non-jurisdictional nature, being controlled externally by the judicial authority and directed to provide the latter with a first investigation and examination material.
However, as it turns out from the above mentioned lines, the performance of such a corrective power seems to be linked to an idea of supervision of the auxiliary services of the Judiciary, in the exercise of its typical function, that is, in the jurisdictional action, which would lead to the idea that the inspection would find limits in the procedural activity, since, on the contrary, it would lead to the conclusion that there is no need for a Civil Police Corregiment.
With propriety, the Saraiva Encyclopedia of Law, in its own words, gives the master lines of such differentiation, and it is appropriate to ask for the following transcription:
CORRECTION In the judicial sphere is the supervisory activity exercised by magistrates on all auxiliary services, the Judicial Police and prisons, which includes the competence to apply disciplinary penalties to the servants, clerks, faithful, porters and law enforcement officers. In the public administration means inspection, through visits, inspections, examinations of documents, to several or certain bodies to verify the efficiency and smoothness of the services.
Likewise, in the same sense, it should be pointed out that De Plácido e Silva asserts that acts of judicial correction apply to procedural acts:
And, in performing such duties, the corregidor or any other body to which corrections may be made may even refer to errors, abuses, disrespect and tumultuous inversions of acts and the legal form of the proceedings, ex officio, or in virtue of complaints, providing on these cases, what is of Law and its competence.
On the subject, reinforcing this idea of different fields of action, including, punctually, with propriety, Judge Octavio Augusto Machado de Barros Filho, for whom:
In the formal aspect, the duties of the permanent corregedorias consist in the supervision, administration and orientation of the organs of the justice on their auxiliary services, disciplined by norms of service, like provision, resolutions, ordinances and communications, being exercised within the legal limits of their respective jurisdictions, depending on the cumulative or specialized nature of the Varas for which such competence is attributed. At the same time, given the dynamics of police activities and prisons, the magistrate also acts as a provider, ex officio or by provocation, correcting and reordering services through normative acts, with a view to the correct and efficient administration of justice; since the Judiciary is ultimately a service provider. It is not excessive to point out that the corrective functions fall only on the services and employees subordinated directly to the monocratic judgment; since, under the terms of Article 129, para. 2, items I, III, IV and VII, CF, find themselves “revoked all devices seen as the so-called performance of legitimizing Magistrate of Judicial Police”, as warns John Estevam da Silva, Promoter of Justice in Sao Paulo. The supervision of the acts practiced by agents of the Military Police and the Civil Police is incumbent upon the authorities under which they are subordinated hierarchically and their respective Corregedorias, except for the external control in charge of the Public Ministry. In this sense, the lesson of Prof. Hélio Tornaghi: “while the rules regarding the Administrative Police are Administrative Law, those that refer to the Judicial Police are procedural law,” therefore, “if the Judicial Police organically interconnects the administrative machinery of the State, functionally it is linked to the apparatus the judiciary. There is no hierarchical, disciplinary subordination between the Judicial Police and the Judiciary or even the Public Prosecution, but functional interdependence. Only in this sense is the auxiliary police of justice.
Therefore, in the administrative sphere, any infractions imputed to certain police officers must be determined, in the administrative sphere, by their own organs (in the case of civil police, the Civil Police Corregedorias) and not by the Judiciary, which, however, if they encounter denunciations regarding such infractions, they can not remain inert, and must communicate the proper organs to the appropriate measures.
That is, before a complaint, after the caution of reducing it to term, should the Judge with attribution of Judicial Police Corregiment, to determine the sending of a copy to the Civil Police Department, without prejudice, in case there are indications of a crime criminal investigation of an unconditional public initiative, to determine the scientifica- tion of the dominus litis poenalis, that is, the ministerial representative, in order to initiate the measures he deems appropriate in relation to both (although, in the last resort, by analogical extension of the advent of rule contained in article 40 of the Code of Criminal Procedure).
That is because, under conditions such as this, by the obvious, it would take care of a situation of incidence of the principle of the officiality of the criminal action, to demand, therefore, such measures of official impulse.
Similarly, one could not deny cuddle up in these cases unequivocally situation possibility of action of external control over police activities under Lomp (Complementary Law No. 75/93), as can be extracted from the advent of their provisions of articles 7 and 9.
Fernando Capez points out that:
Public authorities responsible for prosecution must act ex officio, without the need for provocation or the assent of another. The slowdown is given, again, the cases of prosecution of private (CPP, art. 5 o, par. 5 o) and conditioned public prosecution. The rule does not prevent the provocation of public bodies by any of the people according to the Code of Criminal Procedure, art. 27.
Such a situation would not create a situation of impediment or suspicion of the Magistrate who had the initiative of communicating the aforementioned organs for the prosecution of any criminal action (which may eventually be distributed to him), as already pointed out by the E. Court of Justice of the State of São Paulo, on more than one occasion (on the contrary, in taking precautions such as this, it is noted that the Magistrate is taking precautions in the interest, precisely, of preserving his impartiality, as a political foundation for the existence of a Judiciary Branch in the Democratic State of Law).
In this sense, one would ask bowed to highlight how much decided, in this regard, on Suspicion Exception No 75716-0 / 1-00, Espírito Santo do Pinhal, Rel. Des. Álvaro Lazzarini, j. 15.02.01, the text of which is as follows:
Exception of Suspicion. Determination of extraction of copies of testimony from witnesses and referral to the Public Prosecution Service. Subsequent conduction by the Magistrate of proceedings instituted by reason of the action taken. Different processes. Hypothesis that does not fit in the forecast of the subsections of art. 254 of the CPP. Exception rejected.
Thus, it would not be possible to confuse the fields of action of the judiciary police corregedoria and civil police corregedoria, since the first one would not lend itself, as a matter of fact, to investigating functional infractions of the policemen, but, on the contrary, such deviations may jeopardize the smoothness of judicial acts (which, it is emphasized, does not prevent that, in the event of any responsible communication of violation of functional duties, the spheres with attribution are communicated).
In this sense, even has already decided the E. Court of Justice of the State of São Paulo, in precedent I ask you to highlight:
Police – Permanent Corregedor – Ampla defense – Competence – In the investigative procedure that is not intended to accuse and punish is not necessary the contradictory and ample defense – The civil police is auxiliary of the justice when it carries out the arrest in flagrante, act of Police Judiciary and of determination of criminal infractions, subjecting itself in the exercise of this function to the control of the permanent judge by virtue of art. 77 of the State Constitution – Order denied. (Injunction No 384462-5 / 8 – São Paulo – 8 to Public Law Chamber – Rapporteur: Teresa Ramos Marques – 15:12:04 – VU).
Thus, for example, the supervision of the activity of the Judicial Police, by the respective corregedoria (ie, not by the Civil Police corregedoria), in the activity of granting search warrants and seizure, would remain patent, which would not be the case with respect to an accusation of concussion, which should not be directly determined by the court judge, who should forward the fact to the Civil Police Corregiment and, in that case, because the offense could also be criminalized, (in this case, nothing would prevent the direct request for the initiation of a police inquiry to the police authority with such attribution, say en passant ).
Regarding the issue in question, that is, granting of search warrants, as a form of action by the judiciary police corregidor, there would also be controversy regarding the possibility or not of granting them to Military Police agents, not being unaware that care should be taken of a peculiar providence, to be examined with some caution, especially since the domicile is usually (not without exceptions) held as inviolable by the constitutional text.
In this sense, it is worth emphasizing the opinion of Edson Mongenot Bonfim, for whom:
The doctrine considers the role of art. 240, par. 1, because the search is emergency measure that achieves fundamental guarantee of the individual. The Federal Constitution establishes that the house is the inviolable asylum of the individual, and no one can penetrate it without the consent of the resident, except in case of flagrante delicto or disaster or to provide relief, or even during the day by judicial determination (art. 5 a, XI). This article has art. 245, caput, of the Code of Criminal Procedure that the home searches will only be executed during the day, unless the resident himself allows them to be performed during the night. Part of the doctrine also identifies the possibility that, in the specific case of the flagrante delicto, the search and seizure can be effected even at night, since the Federal Constitution itself exonerates such situation.
But even so, it has been that the request for search and seizure can be made at any stage of the process, including before the police investigation (in this sense the opinion of Fernando da Costa Tourinho Filho, as it is also verified in jurisprudence, in so far as it is purely exemplary, as stated in the classic interpretation set out in RT 665/333), taking care, moreover, of a measure expressly provided for by the advent of the rule contained in Article 240 and its members of the Code of Criminal Procedure.
In these conditions, there being justified reasons, reported by a military police officer, in the sense of the occurrence of offenses punishable by criminal action of unconditional public initiative, therefore, in a situation of possibility of incidence of the mentioned principle of the officiality of the criminal action, there would be possibility of deferment of warrants search and seizure (insist is taken the precautions envisaged by the advent of the rule contained in Article 240 and their consectários the Criminal procedure Code, notably in its § 1, letter “d”), although signed the election by agent of the Military Police, in spite of the fact that there are some misconceptions to the contrary (there are no real institutional clashes in relation to them, mainly motivated by associations of Police Delegates, or even members of the police career, but it is not forgotten that takes care of an issue that can be influenced by ideological, even political, factors of the quest the raised).
First of all, it should be stated that the possibility of being the request made by the Military Police has long been authorized by the Superior Court of Justice, :
Judicial order. Alerted by notitia criminis from a military police body, the search and seizure of the respective judicial order by the same body is not tarnished by the same body, especially since it followed the regular investigation by the Civil Police, to which the seized goods were delivered. RSTJ 27/101
And it is not observed that such an understanding has been altered by subsequent judgments, and it must be regarded as effective, under such conditions, as it is obligatory, in spite of the fact that there is no agreement to the contrary.
In order to corroborate this understanding, it could also be pointed out that Articles 13h and 176 of the Code of Military Criminal Procedure would allow the Military Police to conduct searches in the Military Police inquiries and that, although if it is a matter of military law, can be applied subsidiary to the question, reinforcing the understanding crystallized in the aforementioned Judge, since, if there is a law authorizing the Military Police to conduct searches, there is nothing to prevent, in the absence of a normative prohibition, the analog judgment (Article 4 of the Introductory Act to the Civil Code), in the pursuit of the common good and social purposes for which the law is intended (Article 5 of the same law).
Nor should it be claimed that the rule contained in Article 144 and its members of the Constitution, would lead to illegality of a claim or deferment of the warrant in question to an agent of the Military Police.
This happens in that paragraph 4 of the mentioned constitutional consectário states that the Civil Police vested the judicial police functions and investigation of criminal offenses, nothing more. In the same sense, the content of the norm contained in article 140 of the Constitution of the State of São Paulo.
However, the measure of search and seizure can not be conceived as the exclusive function of the Judicial Police, since Article 242 of the Code of Criminal Procedure establishes that the search and seizure may be determined ex officio or at the request of either party.
There is no rule establishing the exclusivity of the Civil Police for the search and seizure, nor fixing such a diligence as an act of Judicial Police (this without mentioning exceptional hypotheses such as the procedure of crimes against immaterial property, among others, that prove the lack of the exclusive character that was mentioned).
With precision, in fact, on the subject, the positioning of Alvaro Lazzarini, for whom:
But it is true that the responsible body of the preventive police – on the constitutional order, the commission on municipal state level is the Military Police (Article 114, par 5, of the Constitution..) – necessarily and automatically, before the a criminal offense that he can not avoid, must proceed to immediate repression, taking all the measures listed in the procedural order for the criminal type that, at least in theory, has occurred. Remember that immediate repression can be carried out by the military police officer, without breach of the constitutional provision, because those who are responsible for preserving public order have a duty to restore it when they violate it.
Under these conditions, the Security Police could also carry out activities of a procedural nature, in order to restore public order, which would not prevent the Military Police from obtaining judicial orders, without any violation of the constitutional text, as already defined by the Superior Court of Justice.
From that consideration, of course, there would be allegations that it would take care of measures that violate legality, or that the suit or its concession would consist of acts of impropriety or usurpation of public function.
On the contrary, as a beggar, it would take care of guidance that would best meet the principle of efficiency, expressly foreseen by the advent of the norm contained in article 37, caput, of the Constitution.
This is because the society does not care about the institutional debate between the Civil Police and the Military Police regarding the limits of their functions, and that what is sought is the maintenance of public order in an efficient way, which would be better achieved with the collaboration of these organs, for reasons of singular Franciscan truism.
The understanding in the sense that the two bodies would have attribution to such lawsuits is shown to be more apt to meet the social ends to which the law is intended and to the demands of the common good (and again invokes, in as established in the advent of the rule in Article 5 of the Introductory Act to the Civil Code), behold, thus, the very possibility of police corruption would become more difficult (for example, of no use to bribe an investigator or delegate, if the entire military police body can adopt measures aimed at restoring public order).
Thus, despite up can be learned understandings to the contrary, if on one hand the Political Letter assures sobreprincípio freedom, in its Article 5, caput, likewise ensures the same normative consectário a right of collective nature, which is, security, which must be weighed against a perspective of proportionality, especially in this matter brought to cognition.
Similarly, in communities of small population size common in the interior of the country, the monopoly of prerogative on the exclusive figure of the police authority could be deleterious if there had been news of the commission of any crime by the holder of this charge.
It is true that in such situations it might be suggested that another delegate should be urged to investigate, but, as stated above, corporate reasons do not seem to indicate that this is the best option (not because of the lack of exemption from the debtor, but also for the preservation of the image of exemption, in accordance with the principle of morality laid down in Article 37, Lex Mater ), and it is therefore appropriate that another body should intervene, with greater advantage, therefore, in the public interest, which, as also seen elsewhere, would be oriented towards the attainment of public order and peace.
The discussion, moreover, seems to be of a certain Byzantinism, since, of course, in taking care of the measure of interest of the dominus litis poenalis, the ministerial representative will be given beforehand, being certain that the Judge Corregidor also takes unequivocally science of the measure, so that, under these conditions, nothing would prevent the judge or the prosecutor, from then on, determining or requesting determination, the diligence of search and seizure in question.
That is, it would be enough for the Military Police agent to urge the Corregedor Judge to order the ex-officio (principles of officiality and of the legality of the criminal action – the last one outlined above) to determine the measure, under the regency legislation ( as it will be explained later if the Judge is to launch, he must act as Judge of Law and not as Corregedor, which presupposes prior distribution, if he is not on duty or outside the distribution times in the Forum, in the terms recommended by the NSCGJ for example), the same being given, mutatis mutandis, in relation to the learned representative of the parquet to whom the request is given.
Equally, above all the above mentioned lines, when it was clarified that the correctional activity would be atypical, inasmuch as it would imply in inspection activity proper to the Executive Power and not to the Judiciary Power, one could not fail to record that when the measure leads to the provision of a provision, a measure specific to the exercise of the jury dicere, or power to say the right, typically a judicial activity, no longer have to consider the activity of Judicial Police Corregiment.
Often the measure may prove to be extra-criminal in nature, that is to say, to be pleaded in another court, for example, in a civil court, therefore, not being subject to analysis even before the Judicial Police Corregiment (totally outside the scope of expected performance for the incidence of atypical activity highlighted above).
Regarding this aspect of this approach, it is quite pertinent the understanding of the E. Court of Justice of the State of São Paulo, in the sense that:
COMPETENCE – Request for breach of bank secrecy and civil police prosecution – Request made to the Corregidor of the Judiciary Police – Inadmissibility – Hypothesis of true precautionary measure – Pretension to be deduced from the Civil Court – Appeal not provided. (Appeal in Strict Sense n 227488-3 – Santos – 6 the Criminal Chamber – Rapporteur:. Fanganiello Maierovitch – 30/10/97 – VU).