geeeez!.. the title reminds Kafka...

OK!

For the last couple of days, I have been involved in pseudo-legal discussions on this forum. I have tried to make a brief, more systematic description of how the whole thing works. It is VERY simle, it’s SCHEMATIC (the whole legal monster is 130 pgs long!). Hope it helps. If the mods think this would be better on the legal thread, be my guest. I’ve tried to the best of my abilities, to make it readable to everybody.

Enjoy!!

1 - Police has knowledge of ‘occurence�? Decides if it likely to be a crime

2 �?After Max 10 days, if it is likely to be crime, has to report to the Prosecutor Services (Ministério Público)
3 �?The INQUIRY PHASE begins. The Ministério Público (MP) starts the investigation. A prosecutor heads the investigation, with the help of the police. Under certains circumstances, this phase can be under secrecy of justice (new code. Previously it was, by default under secrecy of justice).

4 �?Some powers can be delegated by the Ministério Público to the police (PJ)

5 �?All is overseen by an INSTRUCTION JUDGE which has to approve certain measures like preventive arrest, etc.

6 �?Art. 58 determines when and how the arguido status is given at this phase. Why’s that? Because Art. 57 defines the arguido as the person against whom charges are layed or against whom instruction is required (ie, the general legal rule is that the arguido is only arguido when charged with the exceptions of art. 58 �?which are many, actually). The arguido remains an arguido until the end of the whole process.

7 �?When the inquiry phase ends, the Ministério Público will have to decide whether or not to lay charges. Art. 279 regulates in which cases the inquiry can be re-opened if the MP decides not to lay charges.

8 �?If the MP decides to lay charges (if enough INDICATIONS have been collected), then:

9 �?The INSTRUCTION PHASE begins. This phase is OPTIONAL. The arguido has to request it. If not, it goes directly to trial.

10 �?The instruction phase is LED by the instruction judge (vs. ‘overseen�?as in the inquiry phase).

11 �?The instruction phase is made of all instructory acts that the judge decides are necessary and including, ALWAYS, an INSTRUCTORY DEBATE which is an oral and adversarial instructory act, performed with all parties present, presided by the judge.

12 �?Both the MP and the arguido can assist to ALL instructory acts. They can also request any explanations or ask to the judge to ask any questions they find necessary to discover the truth, including calling witnesses or requiring further diligences. The judge can delegate some of this diligences in the PJ. Remember that even those performed by the PJ can be assisted by the arguido

13 �?The judge can deny requests that are obviously not necessary to discover the truth and/or have as purpose the delay of the process.

14 �?All acts and diligences performed in the inquiry phase NEED NOT be repeated as long as they followed the correct legal form or when such repetition is crucial to the purposes of the instruction phase

15 �?No CHARACTER WITNESSES are allowed at this phase. Actually, art. 128 restricts their use.

16 �?At the instructory debate is basically a rather informal ‘get together�?where everybody discusses what has been done so far so the judge will have a clearer perception if the is enough for an indictment or not.

17 �?In this case (no preventive prisioners), the judge will have FOUR MONTHS for the INSTRUCTION PHASE (counting from the date of the request to open that phase)

18 �?The judge then makes the INSTRUCTORY DECISION which is to make the indictment or not. If so, it goes to trial. If not, it doesn’t.

19 �?The instructory decision is unappealable, unless it’s null.

20 �?It can be null if the Decision amounts to facts that are substantially distinct from the facts that originated the charge. In that case, the judges should have sent the whole thing back and the MP should do it all over. If during the instruction phase, there are only minor differences between charge and facts leading to the indictment, then the whole this is ‘adjusted�?at this phase. THIS IS IMPORTANT AND EXPLAINS WHY IS CAREFUL TO MAKE A ‘BULL’S EYE�?CHARGE!

21 �?The TRIAL PHASE begins. A new judge (a panel of 3 actually), with the possibility of a jury �?under certain circumstances and rather rarely used.


SECRECY OF JUSTICE

Art.86
Publicity of the process and secrecy of justice

1 �?The penal process is, under penalty of nullity, public, taken into consideration the exceptions foreseen in the law
2 �?The instruction judge may, at the request of the arguido, the assistant or the plaintiff, and having heard the Public Ministry, determine the process will be under secrecy of justice in the inquiry phase if he/she believes publicity may harm the rights of those subjects or other legal participants. This decision is not subject to appeal.

3 �?Whenever the MP believes that the investigation or the legal rights of the process participants may be in jeopardy, in can subject the process �?in the inquiry phase �?to secrecy of justice. That decision has to be validated by the instruction judge within 72 hours.

4 �?In the case the process has been declared under secrecy of justice under the terms of the previous number, the MP can, by its own initiative or by request of the arguido, the assistant or the plaintiff, lift the secrecy terms at any moment of the inquiry.

5 �?Whenever the arguido, the assistant or the plaintiff require lifting the secrecy terms but the MP does no do so, all documents are sent to the instruction, who will decide whether or not to lift those terms. That decision is not appealable.

6 �?Publicity of the process implies, under the terms defined by the law, and particularly, of the following articles, the rights to:

a- for the public in general, to be present in all procedural acts
b- Narration of the procedural acts or the reproduction of its terms, by the media
c- Consultation of the files and request for copies, extracts and certified copies of any parts of those files

7 �?Publicity does not include data pertaining to the basic rights of privacy that do not constitute evidence. The judicial authority determines, by dispatch, by its own initiative or at request, the elements which will remain [always �?my annotation] under secrecy of justice ordering, if it’s the case, its destruction or giving it back to the person(s) to whom it concerns.

8 �?The secrecy of justice binds ALL those subjects and procedural participants as well as any other person who, in any count, has been in contact with the process or has any knowledge of any elements contained therein. Namely, it implies prohibition:

a- to witness or gather knowledge of any aspects of any procedural acts that he/she does not have the right or duty to witness or take knowledge
b- to publicise or otherwise divulge the occurrence of any procedural acts or its contents regardless of the motive of such publicity or divulgation.

9 �?The judicial authority can, on a founded basis, give, order or allow access to certain persons of the contents of procedural acts or documents if it does not harm the investigation and if :

a- it’s convenient to determine the truth
b- it’s indispensable to allow the interested parties to exercise their rights

10 �?The persons referred to in the previous number are nevertheless bound by secrecy of justice.

11 �?The judicial authorities may authorise the emission of certified copies of the contents of a procedural act or document currently under secrecy of justice as long as such copies are necessary to a process of criminal nature, to the instruction of a disciplinary action of public nature or to the admission of a civil indenisation request.

12 �?If the process concerns an accident caused by a road vehicle, the judicial authority will allow certified copies to be taken:

a- where knowledge is given of procedural act or document under secrecy of justice for the purposes foreseen in the last part of the previous number and under request founded on art. 72, n. 1, a.
b- From the official acknowledgement of accident notice emitted by police authority for the purposes of extrajudicial litigation resolution where the insurance company ensuring civil liability is an interested party.

13 �?The secrecy of justice does not hinder the judicial authority to make public statements when they are necessary for the reestablishment of the truth and do not jeopardise the investigation:
a- At the request of persons who have been publicly put into question
b- to ensure the safety of people