The Criminal Process

Based on how the criminal process begins and some aspects of its development, offences can be classified into crimes and misdemeanours:

A crime is intentional (doloso) or, in some cases, negligent (culposo) behaviour resulting in the violation of penal norms – found in the Penal Code or in separate laws – that aim to protect and safeguard legal goods fundamental to society's survival, such as life, freedom, physical and psychological integrity, sexual self-determination, the environment, consumers, the Democratic State of Law, public faith, public health, property, among others.
Misdemeanour offences are less severe penal infractions defined in specific law (link).
The main difference between crimes and misdemeanours is the penalty that can be imposed in response to the delinquent behaviour. To learn more about this, read the introduction to the penal code law (link).

Crimes are divided into public penal action crimes (unconditional or conditional) and private ones.

Unconditional Public Penal Action Crimes
These are crimes where it is sufficient for the Public Prosecutor's Office (link) to become aware of the occurrence by any means to initiate the criminal process, i.e., the process begins regardless of the victim's wishes and can be reported by anyone. Examples include homicide, rape, domestic violence, abuse, racial insult, and robbery. They correspond to most of the crimes provided for in the Penal Code and in special legislation.

Conditional Public Penal Action Crimes
Crimes where the process begins only after the victim of the crime files a complaint. That is, the prosecutor or attorney general can only initiate the process if the victim expresses their wish to do so within six months. Examples of conditional public penal action crimes include fraud, light bodily harm, threats, stalking, risk of venereal contagion, violation of commercial correspondence, theft of common property, and breach of secret.

It is crucial to consider that for these crimes, mere notification of the facts to the police or the Public Prosecutor's Office is not enough. The law requires the victim's authorisation, called representation, without which even the police investigation cannot begin. The representation can be made in writing or orally (recorded by the competent authority). 
After six months from the date of the events (or from learning about the author if unknown), decadence operates, and the author of the fact can no longer be punished.

Private Penal Action Crimes 
The process begins only at the initiative of the victim, who must file a criminal complaint within six months through a lawyer or public defender. Filing a police report or asking a lawyer to initiate a police investigation does not meet the legal requirement. Only the victim can file an action against the perpetrator and request the application of a penal sanction. If this is not done, decadence occurs, and the author of the fact will not be held responsible for the act committed. Examples of private penal action crimes include insult, slander, defamation, violation of copyright, and abandonment of animals on someone else's property.

It is important to note that the power of attorney requires specific powers to propose a criminal complaint against a concrete and specific fact for which a response from the State is sought.

Note: What to do to report a crime
The complaint, or criminal complaint, is always the first step in the criminal process. Only through the complaint or criminal complaint can the penal process begin. The police report, in most offences, allows the police authority to initiate the police investigation through an ordinance, and at the end of the investigations, a penal action is proposed. However, as we have seen, in some cases, it is not enough, such as in crimes of conditional public penal action or private penal action (link to 2.1). Other ways to start a criminal investigation include the victim's request through a lawyer or a requisition from the Public Prosecutor's Office or the Minister of Justice.

Generally, the events should be reported to the authority of the location where the crime occurred or was intended to produce its effects (in the case of an attempted crime). As Brazil is a Federal State, the Federal Constitution assigns certain crimes under the jurisdiction of the Union, typically those committed against the federative entity or its parastatal entities, leaving the States with residual jurisdiction. In most cases, crimes fall under the jurisdiction of the State Common Justice.

Events should be reported to one of the following authorities:

Public Prosecutor’s Office (MP)

Southeast Region: 
São Paulo: link; Victim Support, Conflict Analysis and Resolution Project (AVARC): avarc@mpsp.mp.br ou link
Minas Gerais: link
Rio de Janeiro: link
Espírito Santo: link

South Region: 
Rio Grande do Sul: link
Santa Catarina: link
Paraná: link

Central-West Region:
Goiás: link
Mato Grosso: link;
Mato Grosso do Sul: link
Distrito Federal: link

North Region:
Acre: link
Pará: link;
Rondônia: link
Amazonas: link
Amapá: link
Roraima: link
Rondônia: link
Tocantins: link

Northeast Region:
Maranhão: link
Ceará: link
Rio Grande do Norte: link
Paraíba: link
Pernambuco: link
Piauí: link
Alagoas: link
Sergipe: link
Bahia: link

Federal Public Prosecutor’s Office: link

Military Public Prosecutor’s Office:  link
Labor Public Prosecutor’s Office: link

Judicial Police (PJ):

Southeast Region:
São Paulo: link
Minas Gerais: link;
Rio de Janeiro: link;
Espírito Santo: link;

South Region: 
Rio Grande do Sul: link;
Santa Catarina: link;
Paraná: link;

Central-West Region:
Goiás: link;
Mato Grosso: link;
Mato Grosso do Sul: link;
Distrito Federal: link;

North Region:
Acre: link
Pará: link;
Rondônia: link;
Amazonas: link;
Amapá: link;
Roraima: link;
Rondônia: link
Tocantins: link;

Northeast Region
Maranhão: link;
Ceará: link;
Rio Grande do Norte: link;
Paraíba: link;
Pernambuco: link
Piauí: link
Alagoas: link
Sergipe: link
Bahia: link

Military Police: dial  190

Municipal Civil Guard: dial 153

Any of these authorities are obliged to accept all reports and requests presented to them, even if the crime was not committed within their territorial jurisdiction or, in the case of the police, the investigation does not fall under their responsibility. Regarding military crimes or complaints related to labour issues, the Military Public Prosecutor’s Office or the Labor Public Prosecutor’s Office may be contacted.

In some cases, or regarding certain crimes, complaints can alternatively be made by dialling 100 or via the link.

You can request a police report or a term of circumstances even if you don’t know who committed the crime. It is then up to the authorities to investigate and try to identify the perpetrator.

In public prosecution crimes, such as homicide, robbery, and domestic violence, the victim is not required to file a complaint. Anyone who is aware of the crime can report it, and this is enough for the Public Prosecutor’s Office to initiate proceedings, even against the victim’s will. If you intend to report a crime you are aware of but, for fear of retaliation, for example, you wish to conceal your identity, you can do it anonymously, although it is usually preferable to identify yourself, so you can later be called to cooperate with the investigation. In more serious cases, where there might be a risk to your life or physical integrity, you can always ask the authorities to preserve your identity in the proceedings by keeping it confidential (link).

For other crimes, whether they are conditioned public prosecution crimes or private prosecution crimes, such as fraud, insult, or stalking, the victim must authorise the criminal prosecution (representation) or file the criminal complaint within 6 months.

What happens after filing the complaint? To learn more, click here.

Once the incident report ("complaint") is made, a police inquiry is initiated, starting the investigation process. In some cases, the Public Prosecutor's Office itself investigates, in which case we are dealing with a criminal investigative procedure. Criminal investigation comprises a set of actions aimed at determining the existence of a crime, identifying the perpetrator and their responsibility, and discovering and collecting evidence within the scope of the legal process.

This initial phase of the process called the inquiry phase, is usually carried out by a judicial police authority. The police officer in charge presides over the police inquiry under the supervision of the Public Prosecutor's Office. This phase is not considered a judicial phase itself but has an administrative character. Despite its administrative character, precautionary measures can be requested from the Judiciary in cases where the Constitution and the law require it. For example, the police officer cannot conduct wiretaps without prior judicial authorisation. Prior judicial permission is also necessary for searches and seizures.

During this phase, the police officers responsible for the investigation will gather evidence, which includes:

• Interviewing the victim, the defendant/suspect, and witnesses.
• Examining the crime scene for evidence.
• Conducting personal or photographic identifications, which means asking the victim or a witness for a detailed description of the person who committed the crime, inquiring whether they had seen them before and under what circumstances, and possibly showing them a person's photo or a photo lineup to check if they can recognise the person as the one who committed the crime.
• Seeking expert opinions, such as a ballistics expert who analyses the bullet's trajectory, a psychologist who assesses the suspect's personality, a medical professional who evaluates physical injuries, etc.
• Requesting relevant documents (e.g., reports from the local health unit where the victim received assistance, call logs made by the defendant, etc.).

After the victim is heard, it is normal for some time to pass before receiving information about the case's progress. The inquiry phase can last from several weeks to several months, depending on the amount of evidence to be obtained and the complexity of the investigation. During the investigation, it may even be necessary to interview the victim more than once, although it is not recommended. If you want to know how the process is proceeding, the victim should contact the police officer in charge of the investigation, their lawyer in the case of private criminal actions, or the representative of the Public Prosecutor's Office, provide the case number, and ask if they can provide some information.

The victim should cooperate with the authorities whenever requested and inform them of anything that may be useful for the investigation.

If there is a risk of the defendant fleeing, a risk to the obtaining and preservation of evidence of the crime, a risk to public order, and/or a risk to economic order, to the criminal procedural instruction, or to ensuring the enforcement of criminal law, pretrial detention may be applied. Without these requirements, the suspect or defendant may respond to the proceedings in freedom, with, if necessary, alternative precautionary measures other than detention.

What happens at the end of the investigation? To find out more, click here.

At the end of the investigation, the judicial police organ sends all collected evidence to the Public Prosecutor's Office, which will decide whether or not there are sufficient indications that the defendant committed the crime:

• If the Public Prosecutor's Office believes there is enough evidence, the defendant is formally accused. In the indictment endorsement, the Public Prosecutor's Office will identify the defendant, outline the actions they allegedly committed, specify the accused crime, and indicate the evidence intended to be presented at trial.
• If the Public Prosecutor's Office concludes insufficient evidence, it promotes archiving. Unfortunately, not all cases are resolved. Sometimes it’s impossible to identify the perpetrator, or there isn't enough evidence for the prosecution. Currently, victims cannot disagree with the archiving since Article 28, Paragraph 1 of the Penal Procedure Code has its effectiveness suspended by ADI 6305 (link). If the victim has new evidence or wants to suggest actions that haven't been taken, they can submit a request to the member of the Public Prosecutor's Office who decided to archive the process, asking them to indict the defendant or continue the investigation, presenting new evidence to be considered. In cases involving multiple crimes, the defendant may be accused of only some, with the process archived for the others. A case archived due to lack of evidence can be reopened if new relevant evidence emerges.
• There is a third possibility: if the defendant has no previous convictions and a good record, the Public Prosecutor's Office may offer a non-prosecution agreement, provided that the minimum penalty does not exceed four years and the crime wasn’t committed with violence or serious threat to a person. The defendant must compensate the victim for the suffered damages and comply with a pecuniary penalty or community service, provided they fully and detailedly confess to the actions. Although victim participation isn’t foreseen, some locations hold restorative sessions between offender and victim (victim-offender conference). Therefore, the victim can express interest to the member of the Public Prosecutor's Office conducting the process, also indicating losses resulting from the criminal act for compensation purposes. Refer to Article 28-A of the Penal Procedure Code (link) for more on this subject. This isn't applicable in cases of domestic and family violence against women and offences under the jurisdiction of the Special Criminal Court.

Among the opportunities given to the defendant, there's also the conditional suspension of the process. With the judge's agreement, the process is suspended for two years, and the defendant must comply with one or more obligations (e.g., compensating the victim, donating a certain amount to the state or private social solidarity institutions, performing public interest services, not residing in certain places, not contacting specific people, appearing monthly in court to inform and justify their activities, not leaving the district for more than eight days without judicial authorisation, etc.). If these obligations are met during the suspension period, the process is archived. The provisional suspension of the process can only be applied to crimes punishable with a minimum prison sentence not exceeding one year, and it requires the agreement of both the judge and the defendant, with the victim’s consent not being necessary, even if they act as a supporting prosecutor. If the defendant is prosecuted for another crime within these two years, the benefit is revoked, and the process continues. To understand more about the benefit, refer to Article 89 of Law n. 9.099/95 (link).

In the case of less severe crimes, called minor offensive potential, the procedure is different: after receiving the police deed and if the investigated individual is a primary offender, a preliminary hearing is scheduled (Article 72 of Law n. 9.099/95). For private prosecution crimes and public prosecution crimes conditional to representation, an agreement with the victim extinguishes the punishability, regardless of its nature (forgiveness, compensation, etc.). If no agreement is reached, the Public Prosecutor's Office offers a penal transaction that, if accepted and complied with, extinguishes the process. The victim's absence at the preliminary hearing implies tacit renunciation, leading to the extinction of the process.

This phase is usually mandatory since Brazil adopts the accusatory system, requiring evidence produced during the inquisitorial phase to be confirmed in court, granting the defendant the right to adversarial proceedings and full defence (due to the legal process). Since the investigation phase doesn’t allow for adversarial proceedings, all indicative evidence is returned to the competent judge, who will evaluate them freely and with justification. The instruction phase typically begins with an indictment offered by the Public Prosecutor's Office, except in cases of private criminal action where the crime report is presented by an attorney duly appointed by the victim or a public defender if the victim cannot afford to hire an attorney (link).

Exceptions to the instruction or accusatory phase include the non-prosecution agreement in cases where the perpetrator is a primary offender, the crime was committed without violence or serious threat to a person, and the minimum penalty attributed to the crime does not exceed four years. Mandatory repair of the victim's damage is required. Ultimately, a contract is signed between the Public Prosecutor's Office and the perpetrator that, if fully complied with, grants the perpetrator the extinction of punishability. If the agreement is breached, an indictment is offered, and the criminal process begins with the defendant's citation.

Another exception is the civil agreement reached between the victim and the perpetrator or the penal transaction offered by the Public Prosecutor's Office in private criminal action crimes or public criminal action crimes conditional to representation under the jurisdiction of the Special Criminal Court (crimes with a maximum penalty not exceeding two years).

Thus, the instruction phase is a stage for discussing the formulated criminal charge (accusation), during which the Public Prosecutor's Office, the supporting prosecutor, the victim in private criminal action crimes, and the defendant can present evidence that confirms or refutes those obtained during the inquiry or criminal investigation phase, such as witnesses or documents.

During this phase, a criminal judge will analyse the evidence collected during the inquiry, as well as any other evidence they deem necessary or that is now presented and considered relevant. It is crucial to attend the hearing, even if you have already been heard during the investigation phase, as the judge cannot convict based solely on evidence obtained during the inquiry. The victim collaborates with justice in this phase, testifying and identifying the accused (one or more persons). This understanding results from the jurisprudential interpretation of Article 155 of the Penal Procedure Code (link).
 

Thus, the trial judge hears the victim when summoned by the prosecution.
The instruction phase ends with an oral debate, led by the presiding judge, with the participation of the Public Prosecutor's Office, the defendant and their attorney, and the victim and their attorney (if the victim is accredited as a supporting prosecutor or if it’s a private criminal action crime). Exceptionally, in complex cases, the judge can convert the debates into the presentation of memorials by the parties (written pieces), setting a deadline.

At the debate's end, the judge decides whether or not to convict the accused for the charges described in the accusation. The condemnatory or acquittal sentence can be appealed.

If the crime under trial is intentional against life (homicide, infanticide, abortion, participation in suicide), the instruction phase is divided into two stages. Firstly, a preliminary analysis is conducted before the knowledgeable judge, and if it proceeds, the jurors of the Jury Court will decide on the defendant’s conviction or acquittal. Subsequently, the judge will determine the applicable penalty in the event of conviction. In summary, if there is disagreement with the decision of the knowledgeable judge, both the Public Prosecutor and the victim (if serving as an assistant) can appeal. It is crucial to remember: in private criminal actions, except for those initiated by a beneficiary of legal exemption, no act or diligence will be performed unless the judicial fee is collected under penalty of distribution cancellation (art. 806 of the CPP).

At the end of the instruction phase, the knowledgeable judge delivers a decision called a sentence. A criminal sentence is a judicial act that determines the conviction or acquittal of a defendant, concluding a process through the judge's structured argumentation, who oversees the case. The trial is a hearing taking place in a courthouse.

The trial aims to determine if there's enough evidence to convict the defendant of the accused crime and, if so, impose a penalty. The trial also debates and decides if the victim is entitled to compensation for minimal damages caused (art. 387, section IV of the CPP).

The sentence is the conclusion of the legal process. It consists of the facts the judge deems proven, those not proven, and the corresponding evidence that the judge relies on. If the defendant is convicted, the sentence includes the penalty applied and the elements considered for its determination. If there is a compensation claim made by the prosecution, the judge will decide on the required compensation as well.

For cases judged by a criminal judge, the sentence comprises three parts: a report, rationale, and decree. In cases judged by the Jury Court, the decision is made through a simple majority vote by the seven jurors on the Sentencing Council. Following this, the judge pronounces the sentence based on the jurors’ decision and sets the applicable penalty. If there is an appeal by any of the parties, the final act in the process is called a judgment, as it is made by a collegial body of at least three appellate judges.

It is possible that the defendant may be convicted of some charges while being acquitted of others or even acquitted of all charges.

In the case of conviction, the primary penalty may be deprivation of freedom (effective, substitute, or suspended), alone or combined with a fine.

All participants in the process have the right to receive a copy of the sentence, which should be sent to the victim by the judge without a request. If this doesn't happen, it can be requested from the court clerk's office. Generally, anyone can read the sentence except for cases under judicial secrecy.

If parties disagree with the sentence or judgment, the defendant, assistant, or civil party—through their respective lawyers—and the Public Prosecutor can file an appeal.

The appeal is submitted in writing to the court, where the trial occurred within 30 days. In complex cases, the deadline for filing an appeal may be extended by an additional 30 days.

The appeal should outline why the parties disagree with the sentence, either regarding the evaluation of the presented evidence and/or the application of legal norms.

Parties affected by the appeal are notified to respond within 30 days.

The appeal, responses, and other relevant elements of the case are then sent from the trial court to the appellate court or Court of Relation. In some cases, for example, when only legal matters are contested, and the applied penalty exceeds five years of imprisonment, the appeal is sent directly to the Supreme Court of Justice.

After review by the appellate court's judges and Public Prosecutor, a hearing may be scheduled, where all parties affected by the appeal can express their opinions orally. After the hearing, or in some days, the appellate court announces its decision.

Appeals can be filed not only against the sentence but also against other decisions made throughout the process. When no more appeals can be filed against a decision—either because the deadline has passed or because the law does not allow further appeals—the decision is considered final.

Criminal Procedural Law is a set of principles and rules governing criminal prosecution, being a branch of public law. The criminal process is divided into common and special. Typically, all processes follow the common procedure. However, special procedures are applied where specified by the Penal Procedure Code or other special legislation. For instance, special procedures exist for Jury Trials, crimes of responsibility by public officials, and against honour, as well as in other situations outlined in special legislation like the Drug Law (Law no. 11.343/06).

The common procedure is further divided into Ordinary, Summary, and Summarised:

• Ordinary Procedure
• Summary Procedure
• Summarised Procedure