Among the many unconstitutionality, inconsistencies and technical errors, there is a lack of compliance with the criminal procedural system in force, which makes it difficult to analyze clearly the many points contained in the aforementioned law.
Already alerted in 1995, the illustrious proceduralist Afrânio Silva Jardim, when lecturing on the Special Criminal Courts, that “perhaps, not now, but soon, we have to carry out an examination of the law in a non-procedural perspective, but, in a systematic view , realizing that it is special, but inserts itself within a procedural system. “
The moment of interpreting
Taking into account the criminal procedural system, has already arrived, I think it has already passed, and we do not yet have all the incongruities inserted therein. Any attempt to interpret as a separate system, misaligned with basic concepts and guiding principles of the criminal procedure as a whole, is removed here.
The art. 74, sole paragraph, provides that when there is an agreement there will be a waiver of the right of complaint or representation. The agreement referred to in the paragraph of the legal provision can not be other than the head of the cited article, that is, the civil composition.
But as far as the renunciation of the right to represent is concerned, what actually happens is actually a retraction of the representation, when it has already been offered at the police station, which is usually the case. A right which has already been validly exercised cannot be relinquished.
In the body of the preliminary hearing minutes, there is no actual composition of the composition, but only the manifestation of reconciliation of the parties, and it is recorded that the alleged victim renounced his right of representation.
Now, as already said above, there are cases where representation has already been offered, often expressly. How, then, do we allow a waiver of a right already exercised regularly? Not allowed. And so it is, simply because one can only give up what has not yet been exercised, of course.
The manifestation of the victim who does not wish to see the perpetrator of the act prosecuted can not be seen as a waiver of the right of representation, when it has already been validly offered at the police station or before other authorities who may have knowledge thereof.
What is seen here is a retraction of the representation already offered
Which would be possible since there was no offer of denunciation. This conclusion could be objected to with art. 75, of Law no. 9,099 / 95, which would provide for the proper time for the representation to be offered, and this can only be exercised in court. But this is not a robust argument, as will be seen below.
As everyone knows, the representation consists of a manifestation of the victim, or of someone who has the capacity to represent it, who wishes the criminal responsibility of the agent who committed the crime. Such a manifestation, in order to be considered valid, does not require any formal rigor, merely demonstrating the intention to see the responsible person subject to criminal prosecution and can be offered to the Police Authority, the Public Prosecution Service and the Judge.
Such freedom of the means of representation is legally recognized (Article 39 of the CPP) and by the prominent jurists, and Eugenio Pacelli de Oliveira’s lesson is that “to this authorization, when there is no other order of interests that does not the criminal procedural law gives the name of representation, which exempts formalities and whose purpose, as seen, is only to allow, by the consent of the offended party regarding the disclosure of the fact, the state action aimed at criminal prosecution. “
The alleged victim when addressing the Police Department to narrate what happened to the Police Authority, effectively expressed their desire to see those responsible punished, and can not deny validity to such representation. Especially when he often signs a Term of Representation. In fact, according to the illustrious Luis Grandinetti, several statements of the Working Meeting on the JEC recognize the validity of these representations, see one of them:
“The spontaneous communication of the alleged victim or any manifestation of the will of the same in the sense of seeing the fact ascertained, in the Police Station or before the Public Prosecutor’s Office, should be considered representation, prioritizing the full filling in the proper field of the Registry of Occurrence “. Consolidated Statement 18 of Notice No. 03/01/2002 of the TJRJ.
In this way, it would be the representation referred to in art. 75 mere ratification of the representation already offered. If the civil composition, or a reconciliation between the parties exists, the consequence would be the retraction of the representation and not properly a resignation.
The contrary view, in the sense that it is only representation that manifested in judgment in the preliminary audience, brings an insurmountable difficulty. There is often a period of more than 06 (six) months between the preparation of the Circumstantiated Occurrence Term and the preliminary hearing. It would then be asked: was punishment extinguished by decadence, since the valid representation would be only that done in court?
In the understanding presented here, one could ask: would it be valid to retraction of representation, even after the expiration of the six-month decay period referred to in art. 38, of the CPP?
The first question can only be answered in a negative way, hence the representation given to the Police Authority has full legal validity. The State could not violate the right of the victim to see the fact, in a criminal theory, be examined by the Judiciary, under penalty of flagrant unconstitutionality for violation of art. 5, item XXXV, of the Constitution of the Republic, since the excess in the list of hearings is difficulty exclusively of state responsibility.
There are colleagues in the law who consider that such a representation in the police station is invalid if it is not ratified in court, and that the punishment for the decadence is extinguished when there is no representation at the preliminary hearing. misinterpretation of the legal order.
They claim that because it is a special rule, can and has effectively defined the proper moment to offer representation and that communication to the Police Authority would be mere news crime without the legal qualification of representation.
In order to solve the problem of the preliminary hearing held outside the decadential deadline for representation, colleagues say that, in this case and only in this case, in order not to violate the right of the alleged victim, that crime report would be, rather, representation, but only produce its legal effects with its ratification in court. They militate, therefore, with a suspensive cause of the effects of the representation offered to the Police Authority, that is, the ratification of this in court, at the time designated by art. 75.
In other words, for those jurists one hour the manifestation of the victim, in the police station or before an authority able to receive it, would not be representation, if not later ratified in court, and, at another moment, would be a representation, when it was ratified in judgment.
Now, there is no quantum legal institute, which is one thing at a time and now another, depending on the day when a mere audience will be held. Ordinarily such complexity is not attained. One still lives under the dogma that one thing is or is not, and can not be and cease to be at the same time.
The manifestation of the victim before the police authority is undoubtedly a representation and does not depend on any other act to produce its legal effects, so much so that the very elaboration of the Circumstantiated Occurrence Term is already an effect of its legal validity.
Code of Criminal Procedure
Already the second question, can be answered positively, behold that art. 25 of the Code of Criminal Procedure, imposes only as the time limit for the withdrawal of representation the offer of denunciation. In the present case, there will be a valid retraction of the representation, previously offered at the Police Station or before another authority indicated in the Code of Criminal Procedure.
With the decay period already expired, there will be no more possibility of the retraction, occurring the extinction of punishment by the application of art. 107, item IV, of the CP, and art. 38, CPP If the representative is not present at the preliminary hearing, the Public Prosecutor’s Office will be able to file a complaint.
This interpretation is consistent with the systematic analysis of the criminal procedural legislation in force.