Who’s Who in the Criminal Process

Victim

Anyone can be a victim of a crime. Do not think it only happens to other people. A crime victim is a person who, due to an act committed against the current penal laws, has suffered an attack on their life, physical or psychological integrity, emotional distress, or material loss. Also considered victims are the family members of a person whose death has been directly caused by a crime and who have suffered damage due to that death. The concept of a victim also includes those who are victims of public calamities and natural disasters. According to Article 1 of Resolution No. 243/2021 of the National Council of the Public Ministry: Art. 1. This Resolution establishes the Institutional Policy of Full Protection and Promotion of Rights and Support to Victims, intending to ensure fundamental rights to victims of criminal offences, infractions, natural disasters, public calamities, and serious violations of human rights, guaranteeing them access to information, communication, participation, truth, justice, due diligence, security, support, individualised and non-discriminatory professional treatment, physical, patrimonial, protection of psychological integrity and personal data, participation, and repair of material, moral, and symbolic damages, supported as a result of the victimising fact (link). Most of the acts considered crimes in Brazil are described in the Penal Code, but there are some, such as drug trafficking or illegal carrying of weapons, and crimes against the environment, which are provided for in other laws. If you were or are a victim of a crime, report it to the authorities. To learn more about how to report a crime, click here. Crime victims have a set of rights that are important to know. To learn more about the rights of crime victims, click here. In the criminal process, the victim is almost always called to participate as a witness, as the direct knowledge they have of what happened is very important for discovering the truth. To learn more about witnesses, click here. But if the victim wants to file a claim for compensation against the defendant because of the damages the crime caused them, they can, besides being a witness, intervene in the process as an assistant to the prosecution. As an assistant to the prosecution, the victim can file a claim for compensation and respective evidence of the damages they suffered. To learn more about the right to compensation, click here. The assistant's role is to collaborate with the Public Ministry, and by assuming this role, the victim has the possibility of participating more actively in the process. The assistant can, for example, oppose the provisional suspension of the process, request its revocation if compensation has been set and this remains unpaid by the defendant, or actively participate by requesting diligences they consider necessary, appealing decisions issued in the first degree that affect them, among others. The assistant's performance to the prosecution is still limited; for example, Summary 208 of the STF hinders the assistant to the prosecution from appealing a decision granting habeas corpus. To constitute themselves as an assistant, the victim must have a lawyer. In addition, they generally have to pay a court fee. If the victim cannot afford to pay the lawyer's fees, the court fee, and other process expenses, they can request assistance from the public defender's office. To learn more about the right to legal support, click here. In processes that involve diffuse and collective interests, such as the issue of orphanhood caused by the COVID-19 pandemic without the government having developed an effective public policy for reception, the Public Ministry can institute a civil inquiry to investigate the facts that occurred, recommend the implementation of public policies, formulate agreements for adjustment of conduct, or propose public civil action. In this sense, Art. 129, III of the Federal Constitution: Art. 129. The institutional functions of the Public Ministry are III – to promote civil inquiry and public civil action to protect public and social property, the environment, and other diffuse and collective interests. The Law of Public Civil Action also provides for those legitimised to propose public civil action: the Public Defender's Office; the Union; the States; the Federal District; the Municipalities; autarchies; public companies, foundations, or mixed-economy companies; associations. However, for the last two items to propose the action, the following requirements must be met: 1 – be constituted for at least 1 year under civil law; 2 - include among its institutional purposes the protection of public and social property, the environment, the consumer, the economic order, free competition, the rights of racial, ethnic, or religious groups, or artistic, aesthetic, historical, touristic, and landscape heritages (link).

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The Judiciary

The judge is a member of the Judiciary who performs their function independently, adjudicating only according to the Constitution of the Federative Republic of Brazil and its laws. To exercise their responsibilities, they have guarantees of tenure, immovability, and irreducibility of earnings. Such guarantees aim to provide citizens with an impartial Judiciary that is free from political pressures. Throughout the criminal process, various judges may intervene: the judge of knowledge, the execution judge, judges who act on appeal, named appellate judges, or in the case of Superior Courts, Ministers. The judge of knowledge operates during the inquiry, instruction and judgment phases. Only in some locations will the judge overseeing the investigation differ from the judge participating in the instruction and judgment, as in São Paulo, where the Court of Justice created the DIPO. The Anti-Crime Law sought to create the guarantor judge (Law 13.964/19), but this provision was suspended by the Federal Supreme Court. Thus, generally, the judge to whom the inquiry was distributed will be the same presiding over the instruction and judgment phase. The inquiry phase is chaired by the police authority, with external control from the Public Ministry, or in some cases, chaired by the Public Ministry itself should it establish a criminal investigative procedure. Some acts, because they may affect citizens' fundamental rights, must necessarily be performed or authorised by the judge. This includes search and seizure, breaking of bank secrecy, and wiretapping, among others, as they involve the application of a coercive measure. The judge's mission is to ensure that when these acts are performed, fundamental rights are not jeopardised, or if they are, it is justified by the investigation and only to the strictly necessary extent. During the instruction phase, the instruction judge's mission is to verify if the presented complaint or criminal accusation meets legal requirements. For this, they will analyse the evidence gathered during the inquiry phase, as well as any other evidence they deem necessary or that is now presented and considered relevant. Then, it's their responsibility to schedule the instruction, debates, and judgment hearing, which is chaired by them and attended by various participants in the process. At the end of the debate, the judge who chaired the instruction decides whether or not to convict or acquit the defendant. If the judge decides to reject the complaint or criminal accusation, the defendant will not go to trial. This decision can be changed through an appeal presented by the Public Ministry or the assistant. If they decide to accept the complaint or criminal accusation against the defendant, the latter will go to trial. There is no legal provision for appealing this decision. However, the filing of habeas corpus is always possible.   Upon receiving the case, the judge must schedule the hearing, summon the defendant and notify all those who should participate. They have two main functions: Firstly, presiding over the hearing. It is the judge's responsibility to direct the proceedings, ensuring they proceed orderly and disciplined, that evidence is presented, and that the process participants can examine and question it. If vexatious questions are formulated or if there are attempts against the dignity of the victim or witness, they should be addressed to the judge, as omission can lead to charges of institutional violence. Secondly, deciding, based on the presented evidence, whether the defendant is convicted or acquitted and, in case of conviction, the penalty to be applied. If any compensation claim has been filed, they must also decide on it. It is the judge's responsibility to write the sentence, read it publicly in the courtroom on the scheduled date, and explain it to the process participants, notably the defendant and the victim if present. In some cases, the judge does not make the decision on the spot and calls the records for conclusion. In this case, the sentence will be published in the registry, becoming public. Judges have a law degree and have passed a public competition of tests and titles for investiture in office. Afterwards, they also completed an adaptation course with the Magistracy School of their State or Region (in the case of federal judges). If you believe that a judge has disregarded your rights, you may bring this to the attention of the local magistracy's Corregidor or the National Council of Justice.

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The Public Ministry

The Public Ministry is an independent and autonomous institution comprised of a group of justice prosecutors with unity, indivisibility, and functional independence. Administratively, they are hierarchically organised, designated as Justice Prosecutors (Public Ministry of the States and Federal District), Republic Prosecutors (Federal Public Ministry), Labor Prosecutors (Labor Public Ministry), and Military Prosecutors (Military Public Ministry). They are responsible for exercising criminal action, defending legal order, democratic regime, diffuse and collective interests, homogeneous individual interests, and public and social assets (according to Article 127 of the Federal Constitution). In a criminal process, the Public Ministry has various functions. Firstly, it is tasked with receiving news of facts (information pieces) or police inquiries and presenting charges. For more serious crimes, called unconditional public criminal actions, the victim is not required to file a complaint. Any person aware of the crime can file a complaint, which is sufficient for the Public Ministry to initiate the process, even against the victim’s wishes. For other crimes, the victim must file the representation (for conditional public criminal action crimes) or file the criminal complaint within six months of learning about the perpetrator; otherwise, the Public Ministry cannot open a process. If the victim cannot file a representation for being under 18, sick, or any other reason, a close relative like a spouse, parent, or child can file the complaint. When the request is filed with the police, they must accept it, initiate a police inquiry, conclude investigations, and send it to the Public Ministry to open the process. Next, the Public Ministry is responsible for overseeing the fairness of the investigation. Evidence is collected by police officers and overseen by the police chief, but the Public Ministry member can request necessary diligence since they are the recipients of the evidence obtained by the police. In more complex cases, the Public Ministry member initiates a criminal investigative procedure and directly participates in evidence collection, interviewing witnesses, requesting expert reports, and interrogating the defendant, among other roles. At the end of the inquiry phase, the Public Ministry member evaluates the collected evidence and decides whether it’s sufficient to charge the defendant, that is, to take them to trial. For more information on this decision, click here. In the subsequent phases—namely the instruction, debates, and judgment phases, the Public Ministry isn’t obliged to uphold or defend the accusation. During the trial hearing, the Public Ministry must prove the facts the defendant is accused of and will present the evidence: witnesses, experts, documents, etc. Objectivity and legality should lead the Public Ministry to request the defendant's acquittal if they believe the facts haven’t been proven. Finally, the Public Ministry can also appeal a decision they disagree with. The Public Ministry is crucial in informing crime victims, initially providing information on support institutions and contacts. It must inform about the right to file representation or criminal complaints and what happens afterwards if the police authority hasn’t provided this information. It may also inform the victim about the possibility of seeking public defence if they can’t afford the process expenses and wish to be represented as an accusation assistant. The Public Ministry informs victims of violent crimes (like homicides, rapes, child sexual abuse, severe physical offences, etc.) and domestic violence victims about the possibility of requesting compensation. Lastly, the Public Ministry must ensure that the Judiciary informs victims, especially in cases where the defendant is particularly dangerous, of decisions or situations changing the defendant’s status, like parole or prison escape. For more information on the right to information, please click here. The Public Ministry services are generally located in court buildings, and in some cities, they have their own headquarters. Public Ministry members have a law degree, passed a public round of tests, acquired titles to join the career, and attended an adaptation course in their state or region. According to the Constitution, they are considered equivalent to magistrates for all purposes, following the European trend that often refers to them as Public Ministry magistrates. Therefore, they have the same rights and guarantees as judges. If you believe a Public Ministry member has disregarded your rights, you should report this fact to the Public Ministry's Internal Affairs in your state or directly to the National Council of the Public Ministry.

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The Police

Judicial police organs play a significant role, assisting judges and the Public Ministry in facilitating the smooth progress of criminal proceedings. Firstly, whenever the police become aware of criminal activities through received reports or witness the commission of a crime, they have a duty to act. Even before any formal communication is made, if there's a risk of losing crucial evidence for the case, the police must take all appropriate measures to preserve it and initiate a police inquiry. They must carry out urgent and necessary actions to prevent the destruction or loss of evidence, like immediately seizing a vehicle involved in a homicide that a suspect might want to hide or destroy to eliminate any traces left. Subsequently, the police are responsible for conducting and overseeing investigations under the supervision of the Public Ministry. The police collect evidence, examine the crime scene, interview victims, suspects, and witnesses, acquire documents, seek expert assistance, and conduct searches and wiretaps, among other activities. Some of these actions must be authorised by a judge after consulting the Public Ministry, but most of the time, the police handle evidence collection. The Public Ministry can request the inquiry whenever necessary to assess the state of the investigation, and the records must be submitted every 30 days to determine whether there is a need to agree on extending the timeframe for concluding the investigation. Unjustifiably prolonging an investigation to the detriment of the person under investigation or scrutiny constitutes an abuse of authority (link). During the investigation, if victims want to provide more information or inquire about the process, they should contact the police officer in charge or the justice prosecutor overseeing the investigations. If victims are threatened, intimidated, or have concerns about their safety, they should report this situation to the police authorities. Typically, the Judicial Police (civil police) conduct crime investigations. The military police do not have the authority to investigate crimes, focusing primarily on prevention. They can arrest individuals caught in the act of committing a crime and hand them over to the police authority, taking measures to preserve the crime scene until experts arrive.

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Judicial Officers

A judicial officer is a professional working in the secretariats of the courts. Their role involves carrying out acts ordered by the judge, as well as independently conducting a series of administrative procedures essential for the proper progression of the process. The responsibilities of a judicial officer include, among others: Receiving documents, applications, and other relevant papers, incorporating them into the process, and making them known to the judge and the Public Prosecutor's Office. Notifying participants in the process about the judge's decisions, such as the date and location of the trial, process costs, etc. Recording minutes, which means describing what occurs during procedural acts. Before a procedural act, calling the names of individuals summoned to attend and informing the judge about who is present and who is absent. Issuing attendance certificates requested by participants in a particular procedural act to justify absence from work. During the trial, recording the statements of the participants or procedural subjects. If a victim wishes to clarify any doubts about the practical aspects of the court's operations, they can ask the judicial officer. The officer should provide clear and straightforward explanations, ensuring the victim can understand the information.

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Victim’s Attorney

The victim's attorney's role is to assist the victim throughout the legal proceedings: explaining the unfolding of these procedures, providing counsel, informing the victim about their rights, and assisting them in exercising these rights and defending their interests. The role that a victim's attorney can assume in the process depends on the victim’s own position within it. To learn more about the victim’s position in the process, click here. If the victim participates in the process solely as a witness, their attorney can accompany them in the acts where their participation is required and inform them about their rights when necessary, but cannot intervene. If the victim takes part as a prosecuting assistant, they must be represented by an attorney. In this case, the attorney's role is to oversee the prosecution and advocate for the victim's right to compensation. The attorney is responsible for submitting the compensation claim and relevant evidence, particularly regarding damages suffered by the victim, participating in the trial, questioning the defendant, witnesses, and possibly experts on aspects related to the compensation claim, and appealing if they disagree with the decision on this or any other fact related to the process. It is important to note that the victim does not need an attorney to file a compensation claim, as the Public Prosecutor themselves can do so when filing charges. However, it is crucial to provide the prosecutor with all essential documents and facts for the compensation claim, even requesting the addition of these documents to the police inquiry, even if not requested by the police officer. If the victim wants to actively participate in evidence production, they must be represented by an attorney. Acting in the victim’s interest, the attorney will, for example, submit or request the collection of evidence deemed important, question the defendant, witnesses, and experts during interrogatories in which they participate, or appeal decisions they disagree with. In summary, a victim is not always accompanied by an attorney: as a witness, the victim can have an attorney if they wish; to act as a prosecuting assistant, the victim must have an attorney. Being a crime victim does not automatically grant the right to have an attorney appointed and paid for by the State. Only if the victim cannot afford attorney fees do they have the right to request free legal aid. Typically, the victim is represented in the criminal process by the prosecutor. The victim should convey their desires and expectations to the prosecutor. Therefore, the appointment of a prosecuting assistant is optional. If you believe an attorney has violated your rights, you should report this to the Brazilian Lawyer Order. [link]

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Victim Support Technician

A Victim Support Technician* collaborates with the Instituto Pró Vitima, who, within the scope of their duties and with the proper qualifications, identifies, accompanies, and supports crime victims. The Victim Support Technician understands what the victim feels and undergoes after experiencing a crime and has the mission of helping them overcome or, at least, mitigate this impact. To perform these functions, the Victim Support Technician possesses a set of competencies, both technical and personal. Besides having academic qualifications in areas related to the needs commonly experienced by crime victims—like psychology, law, social services, and theology, among others, they have received specialised training in victim support. Hence, they possess in-depth knowledge about aspects like the consequences of victimisation, victims’ reactions, and the available support resources. From a personal standpoint, the Technician is someone capable of listening to the victim, understanding their fragile situation, providing emotional support, accepting what the victim is willing or not willing to share, and respecting their decisions, even if they disagree with them thinking it might not be in the victim's best interest. Whenever necessary, the Victim Support Technician can accompany the victim to significant events, like court appearances, police visits, or during forensic medical examinations. During these moments, it is crucial for the victim to have a trustworthy person by their side who can provide support.   *The title "Victim Support Technician" refers to a role performed by volunteers at the Instituto Pró Vitima, focusing on the emotional and spiritual support of the victim.

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The Defendant

The defendant, also referred to as the indictee in certain cases, is the designation given in the legal process to someone who is suspected of having committed a crime and is under investigation. The suspect can be constituted as an indictee by the police upon the request of the Public Prosecution Service or the judge and, from that moment on, has a set of rights but is also subject to various duties. These rights and duties extend throughout the entire process. The defendant has the right to be present in the procedural acts that concern him, to be heard whenever any decision affecting him needs to be made, to be informed (before making any statements) of the acts he is suspected of having committed, to refrain from answering questions about those acts, to be assisted by a defender, to present evidence, and to appeal decisions unfavourable to him. Among other duties, the defendant must appear before the judge, the Public Prosecution Service, or the police whenever summoned, subject himself to evidence collection procedures, and not change his residence or be absent from it for more than eight days without previously informing the judge of the new address or the place where he can be found. At the trial, the last person to be questioned, if present, is the defendant. The defendant has the right to refuse to make statements. However, statements made by him in earlier stages of the process can be used and valued by the judge. If he wishes to make statements, the judge begins by asking him whether what is written in the accusation is true, that is, whether he confesses to the acts or not. The defendant then has the opportunity to tell his version of what happened, with the judge possibly interrupting him to ask specific questions. Then, the judge allows, successively, the Public Prosecution Service and the lawyers to ask questions. Unlike witnesses, the defendant does not take an oath to tell the truth before being heard. The defendant can be removed from the courtroom during the testimony of a witness, particularly the victim, if the court considers, for instance, that his presence might prevent them from telling the truth. If the defendant has been summoned to attend the trial and fails to appear, the trial proceeds in their absence and the sentence is communicated to them later. If it is impossible to notify them (for example, because their whereabouts are unknown, implying a violation of their duty to inform the court if they leave the previously indicated residence), the process is suspended while authorities try to locate them. In these cases, the defendant is summoned by public notice, and the process is halted until they are found — which might happen, for example, when they attempt to apply for an identification document or family grant, among other measures, all aimed at locating them and holding them accountable for the acts they are suspected of.

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Defendant’s Counsel

The counsel is the attorney whose role is to defend the defendant’s rights in the legal process. Every person accused in a case has the right to be assisted by a counsel. Hence, if one does not have a counsel, a Public Defender will be assigned to them, or if not available, an attorney. The defendant has the right to be accompanied by their counsel in all procedural acts in which they participate. In some of these acts, the presence of the counsel is mandatory. Representing and defending the rights and interests of the defendant, the counsel plays an active role in the process. This involves presenting or requesting the production of evidence, participating and asking questions during the defendant’s interrogations and the interviews of witnesses and the victim, and appealing decisions with which they disagree, among other duties. The victim might feel uncomfortable with some of the questions posed by the defendant’s counsel, feeling as though their experience is being questioned or invalidated. It’s crucial to remember that the role of the defendant’s counsel is to defend the defendant's interests. If any question crosses the boundaries of what is allowed, it is up to the judge to intervene, maintaining the order and discipline of the trial.

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Witness

Any person with direct knowledge of facts important to the case can be called to participate as a witness, that is, someone who has witnessed the crime or knows something relevant to uncovering the truth. Witnesses can be considered indirect victims to some extent, as witnessing a crime or a violent situation can negatively impact emotional well-being. In principle, anyone named as a witness is obligated to testify, with the exception of the defendant’s close relatives and individuals covered by professional confidentiality, such as journalists, doctors, and lawyers, who may refuse to do so. Witnesses must appear when summoned at the indicated day, time, and place; comply with instructions given regarding testimony; and answer truthfully to the questions posed. Otherwise, they might be accused of committing perjury. Witnesses can request the court to grant them special protection status, in which case no identifying information will be included in the process, although the defendant’s attorney has the right to access their credentials for adequate defence performance. Witnesses can be accompanied by an attorney whenever they have to testify. The witness’s attorney can inform them about their rights when necessary but cannot intervene during the testimony. At the trial, witnesses may not attend the hearing before giving their testimony and must wait in a designated area for witnesses, entering the room only when called. For more information about missing a trial, click here. In virtual trials, the victim waits in the lobby of the hearing room, waiting their turn to give a statement. The defendant may be removed from the courtroom during a witness's testimony, particularly that of a victim, if the court believes, for example, that their presence might inhibit the witness from telling the truth. In case of severe illness or mobility impairment, the judge may travel to the witness's residence to hear their testimony; however, in the case of virtual trials, it is common for this questioning to also be conducted virtually. This inquiry involves not only the judge but also the public prosecutor, the defendant, their counsel, and the victim's attorneys. This testimony is called "statements for future memory" as it is meant to be used as evidence in a trial and is recorded. Measures can be applied for witness protection when their life, physical or psychological integrity, freedom, or considerably valuable assets are endangered due to their contribution to the crime’s evidence. These measures can also cover the witnesses’ family members and close acquaintances. For more information, click here. Witnesses considered especially vulnerable may benefit from a set of measures protecting them from the risk of victimisation or intimidation. For more information, click here.  

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Interpreter

Throughout all acts of the process, whether they are conducted orally, such as witness interviews, or in writing, like letters notifying participants to attend the trial, Portuguese is the language used. When a person who does not speak Portuguese needs to participate in the process, the authority responsible for a specific procedural act requests the appointment of an interpreter who is proficient in both Portuguese and the language spoken by that participant. For example, if a witness is Russian and does not speak Portuguese, an interpreter will be appointed. This interpreter's role will be to translate everything said in Russian by the witness into Portuguese and to translate into Russian whatever is said or asked in Portuguese. An interpreter is also appointed when it is necessary to translate documents written in a foreign language. When individuals who are deaf or hard of hearing need to give statements, a sign language interpreter is appointed. For mute individuals, questions are asked orally, and they respond in writing. The interpreter’s role in these situations is crucial to ensure that involved individuals can understand what is being communicated to them and that they can effectively participate in the process. The appointment of an interpreter comes at no cost to the participant who requires their services.

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The Expert

The expert is an individual who is called to collaborate in the process when understanding the facts or evaluating evidence requires specialised technical or scientific knowledge. Typically, they provide expert reports about their area of scientific expertise, but they may occasionally be called to clarify points in court. For instance, there might be a need for a physician to explain the injuries suffered by the victim and how they were inflicted or for a psychologist or psychiatrist to describe the defendant’s mental characteristics to assess their personality. Alternatively, a computer engineer might be required to demonstrate how a software program was used to commit a crime. In these cases, the physician, psychologist, or computer engineer utilises their technical and scientific knowledge to help better understand what happened. The expert witness is asked to collaborate either by the judge or the Public Prosecutor, and this can happen on their own initiative or because one of the participants in the process requested it. After conducting the expert evaluation, the expert writes a report in which they must include their conclusions about what they examined and assessed. If notified to appear in court, the expert witness gives statements and answers questions about the expert evaluation they conducted and their respective conclusions.

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