Report written by Scribe Valdemir Mota de Menezes
05/04/08Criminal Action Conditional Public RepresentationThere
are four types of action in the Brazilian Criminal Procedure, (1) the
unconditional public prosecution, (2) criminal actions subject to
public representation, (3) the prosecution of private initiative and
(4) the prosecution of public private subsidiary .
The
criminal subject to public representation (APPCR), as its name implies,
depends on the representation of the victim (art. 24, 38 and 39 CPP)
for the establishment of the police investigation (art. 5, § 4, CPP) or
for the offering of the complaint if the investigation is unnecessary since there are already enough evidence (art. 24, CPP).
The
victim (or his legal representative, if it is unable) must exercise the
right of action (representation) within 6 months after the knowledge of
the offender (art. 38, CPP, and art. 103, CP).
It
follows a short discussion, if the victim was minor when the crime
occurred and its legal representative ceased to be within the statutory
period, the victim may, when it becomes capable (turns 18), exercise
the right of representation? It's almost peaceful and so within six months begin on the day of his birthday. (Cf. Mirabet, Criminal Procedure, p. 101)
The representation is obviously a victim's right. She decides to give the state powers to investigate crime and prosecute someone. It is possible to retract the representation, however, it can only occur by the offer of the complaint. After
the offering of the complaint the action is definitely in the hands of
prosecutors and the victim can no longer decide on any aspect of the
course of the proceedings (art. 102, Criminal Code).
It is possible to revoke the disclaimer. Thus,
while within the preclusive period of six months the victim may present
a new representation, although it has been portrayed the past.
To determine whether the action is subject to representation, just see the writing of crime in the penal code. Examples:
Risk of venereal contagion (art. 130), threat (art. 147), violation of
business correspondence (art. 152), disclosure of secret (Art. 153),
theft of a common thing (art. 156).
