Fields of Actuation of the Brazilian District Attorney Department

It's correct to affirm that the District Attorney Department did not appear all of a sudden, in just one place, produced by some legislative act. The District Attorney Department was actually developed slowly and progressively, as a response to historical demands.

During the Colonial-Brazil and a long time after the Brazilian Independence, the development of the District Attorney Department was inseparably linked to the old Portuguese right, based on the Afonsinas Ordinations (1447), Manuelinas Ordinations (1514) and Filipinas Ordinations (1603).

Nowadays, the Brazilian District Attorney Department is defined by the Republican Constitution of 1988 as "a national and permanent institution, encharged to defend the juridical order, the democratic regime and the social and individual undisposable interests" (vide article 127). It can act, with functional independence, in a large Criminal, Civil and Social judicial processes.

Comparatively, a Lawyer defends private interests, while a District Attorney defends the interests of the society, but both are independant institutions and can act in judicial and extrajudicial affairs, accordingly to their respective legal limits.

In the Criminal field the District Attorney Department acts directly investigating the Penal infractions, as well as take charge to promote in trial the apuration of crimes and the responsabilization of their authors, watching out for the society's general interests. The accusatory role of the District Attorney is already, itself, the first factor of protection to the individual freedom, because it assures the contradictory in the accusation and enables the presence of an impartial Judge, for this latter is detached from the onus to accuse. The Republican Constitution of 1988 imputes to the District Attorney Department the exclusiveness to promote the Public Penal pursuit, as well as to requisite police inquiry and investigative diligences. It depends of the District Attorney the external control of the police activity, according to the local District Attorneys' complementary law, without prejudice of the general rules that are fixed in national law. Contrary to what several laymen think, in the criminal field the District Attorney isn't obliged to accuse: he has absolute freedom of conviction and actuation. The District Attorney not only can but he must claim the absolution of the accused or to appeal on his behalf, when he is convinced about his innocence.Equally, the District Attorney can solicit habeas corpus on behalf of the accused, if he understands he is suffering an illegal constraint.

In the Civil field, the role of the District Attorney is as relevant as in the Criminal one, and lately the attributions have grown significantly. The District Attorney Department can be an active organ, when it takes the initiative to provoke the Judiciary Power in several prosecutions; v.g.: interdiction of mental disabled people, annulment of marriage, annulment of fraudulent juridical act, destitution of paternal power, rescissory actions, public actions in defense of diffuse and collective interests (v.g., defending the environment, the consumers, the cultural patrimony or in the civil actions ex delicto, and several others). The District Attorney Department can also actuate in an infinity of effects with the quality of an intervenient organ. This aspect emerges due to the quality of one of the litigants, when it's necessary to care for their undisposable interests or to supply some sort of inferiority (v.g.: the presence of a minor, an Indian, a foundation, a victim of a labour accident, a jacent inheritance or a bankrupt dough). The District Attorney's Department also comes along as an intervinient organ when the nature of the toil has a public interest to care about, v.g.: environmental causes, family causes, civil status causes, testament causes, security writ or popular action). Still in the Civil sphere of action, the 1988 Republican Constitution amplified the active and interventive legitimacy in order to interfere in the defense of social and individual undisposable interests, as well as diffuse and collective interests (vide article 127 and 129, III). The District Attorney Department can also exercise what is called the public administration of private interests, v.g.: following wedding habitations, fiscalizing foundations, approving extrajudicial agreements or terms of adjustment of behaviour.

In the Social field, the District Attorney Department has also the relevant task to attend the needy public. This consists in one of the most suitable fields to watch over the effective respect of the public powers and the relevant public services toward the rights assured in the Republican Constitution (vide article 129, II). Some examples of the District Attorney actions in this field are, can be quoted like: counseling indigents, obtaining agreements, making conciliations, homologating extrajudicial transactions, and several others. In this level, the District Attorney Department has also the relevant function of attending familial causes, labour accident causes, as well as causes involving minors, disabled and elder people or needy people in general.

The Republican Constitution also foresees the intervention of organs of the District Attorney Department to work together with the Tribunal of Accounts and the Councils of Accounts (vide article 130). This latter disposition is the source of several juridical discussions, though, and they are going to be subject of analysis, opportunely.

The Constitutional Inviolability of Privacy and of Data Sigils

Data Inviolability (Republican Constitution, article 5th, X and XII): Banking and Fiscal Sigils

The guarantee of data sigil as a constitutional rule is a recent disposition, for it was brought by the Republican Constitution of 1988. Came along with this innovation, several doubts and juridical consequences. The Complementary Law nº 105/2001, disposes about the sigil of the financial institutions' operations. This complementary law was regulated by the Decree nº 3.724/2001, concerning to the acquisition, access and use, by the Federal Revenue Secretary, of informations related to operations and services of the financial institutions and entities compared to them.

The inviolability of data (Republican Constitution, article 5th, XII) complements the prevision to the right of intimacy and private life (article 5th, X). Both privacy preservation previsions are ruled by the principle of exclusivity, which assures to the individual his identity before the risks provided by the equalized social pressing and incontrasted impositivity of political power. An exclusive thing is what passes through the personal options, affected by the individual subjectively and that is not guided by objective rules nor patterns. Thus, in the recess of privacy hides the intimacy. The intimacy doesn't demand publicity because it does not involve third parties' rights. In the ambit of privacy, intimacy is the most exclusive of its rights.

Therefore, the defense of privacy must protects men, at least, against:
1) the interference in his private, familiar and domestic privacy;
2) the meddling with his physical or mental integrity, or with his intellectual and moral freedom;
3) the attacks against his honour and reputation, or placing him under a false perspective;
4) the communication of embarrassing and relevant facts related to his intimacy;
5) the use of his name, identity and portrait;
6) the espionage and lurk;
7) the interference in his correspondence;
8) the bad utilization of written and oral information; and,
9) the diffusion of advertisement given or taken in virtue of profession sigil.

Concerning to this necessity of human privacy protection, it's needed to highlight that the banking and fiscal informations, whether the constant in the financial institutions themselves or in the Federal Revenue or similar public organs, are all part of the private life of a physical or juridical persons.

It's impossible to reach the protection of intimacy with the simultaneous vigilance exerced on the bank account or the expenses made with credit cards by the citizen, because the donation made by a political party or a religious sect could be identified by the treasury organs that would be unmasking a secret will of the well-deserving (benemeritu). Since the delayed payment of a credit card factura or duplicate, due to financial difficulties or the existence of a bank debit balance, the Union could have knowledge if there was a break of the bank and crediting sigils, involving, if not the communication to other organs or the application of diligences, at least the knowledge of relevant and embarrassing facts related to intimacy.

Several bank informations are provided by the Postal Service (extracts, bills to pay, voucher of deposit, etc), as well as data referent to the Federal Revenue (confirmation of the restitution or debit remainder to the public treasury), that if they weren't protected by the bank and fiscal sigil, respectively, it would configure a disrespect of correspondence inviolability.

Equally to the bank sigil, the informations related to the fiscal sigil can only be trespassed as an exceptional character and in the restricted legal limits, because the declarations given for the purpose of income tax are revested by sigil character, and only exceptional motives justify the possibility of accessing them by third parties, to which is essential the judicial authorization, to stand by the Justice's interest.

The Public Power, through the annual income declarations sent to the Public Revenue, obtains data related to private life and business of all its contributors, whether they are physical or juridical persons. These informations, in thesis are accurate and rigorous declarations of income and patrimony, are protected by the constitutional guarantee of sigil about the contributors' wealth situation. Therefore, there's no doubt that the disrespect of the sigil constitutionally tutelated would generate the violation of several constitutional guarantees.

The Crimes Against Life in the Brazilian Penal Law

"Because, though you yourself may have meant nothing but what was innocent, your words may have suggested something less innocent to the evil minds of your hearers; and then the law steps in, and calls it dolus eventualis, and everybody says how dreadful, and off you go to prison and are punished as you deserve to be." -- Elizabeth and her German Garden, by Von ARNIM

"Under cover of the MEA CULPA, striking her breast so vigorously that everybody, even the lady with the red cushion, turned round toward her." -- The Three Musketeers, by Alexandre DUMAS


Three Topics: 1. Penal Protection of the Physical Person and Juridical Person in the Brazilian Penal Code; 2. The Consent of the Offended; and, 3. Classification of the Crimes Against Life in the Brazilian Penal Code.


1. Penal Protection of the Physical Person and Juridical Person in the Brazilian Penal Code

The Brazilian penal legislator protects the human being since its conception. Hence, the penal tutelage beholds events that precede the birth by the legal typification of the crime of abortion.

Talking about crimes against the person, a fast interpretation leads to the conclusion that it concerns to the physical person, with the exclusion of the juridical person. However, in certain cases, the juridical person can be the passive subject. Thus, nothing impedes that a juridical being be the offender in the crime of defamation. A juridical person, such as a commercial enterprise or an association, can be the passive subject of the crime described in the article 139 of the Brazilian Penal Code, where there's the description of the crime of defamation, legally defined as "to impute to somebody an offensive fact to their reputation". The same happens about the crime of violation of dwelling, described in the article 150, caput, of the Brazilian Penal Code, which says "to enter or to stay, clandestine or astutely, or against the expressive or tacit will of who has the rights, in other's house or in its dependencies". Not only the physical person can be the passive subject of this delict. A commercial enterprise, in connexion with determined compartments of its headquarters, can suffer the illicit violation. Another example is found in the delict of violation of correspondence, in the article 152, according to which disposes that "abusing of the condition of an associate or an employee of a commercial or industrial establishment to, in total or in part, deviate, steal, subtract or suppress correspondence, or to reveal its content to a stranger".



2. The Consent of the Offended

The Brazilian Penal Code of 1890, in its article 26, c, anticipated the victim's consent did not excluded the criminal intention, saved exceptions that the law allowed exclusively to the victim the criminal action. The dispositive was related to the victim's consent manifested after the commitment of the crime and the expression "criminal action" was used by the legislator meaning "penal pursuit" and not criminal behaviour. The consent of the offended, when manifested after the practice of the fact, did not excluded the penal responsibility of the subject, except when it meant forgiveness, hypothesis in which occurred a cause of extinction of the penal pursuit.

The Sá Pereira Project, in its prime conception, anticipated the victim's consent as a reason of exclusion of the penalty when the object of the crime was a good or juridical interest that its correspondent titled person could validly dispose.

The Alcântara Machado Project, in its article 14, I, determinated: "it won't be either punishable who practice the action or omission with the consent of whom can validly dispose of the threatened or violeted right". However, the Reviser Commission understood the disposition was superfluous, that's the reason why the positive Penal Code doesn't treat about the subject.

The consent of the offended can work as:
1º) cause of exclusion of typecity; and,
2º) cause of exclusion of the illicitness of the conduct.

When the penal type describes the absence of the victim's consent as an element, the assent works as a cause of exclusion of typecity. That's what occurs to the crime of violation of dwelling, when the caput of the article 150, disposes: "...against the expressive or tacit will of who has the rights, ...". In that hypothesis, the non-consent of the offended is expressed in the type as an element. In the presence of consent, there's no typical adequation of the fact to the penal rule of incrimination. Thus, the consent excludes the typification.

In cases in which the penal type doesn't bring the disconsent of the offended as an element, when the person is capable and the object is juridically available, the consent works as a cause of exclusion of the illicitness of the fact. Thus, in the crime of loss, described in the article 163, caput, of the Brazilian Penal Code, there's no crime when the offended consents that the material object be damaged, destroyed or deteriorated.

In those cases, in which the assent of the offended has juridical relevance, there's the need of two requisites:

1º) that the juridical object be disposable. If the interest is not available, the fact is licit. V.g.: practice homicide with the consent of the offended. The fact remains a homicide, although can occur a cause of diminution of penalty (CPB, article 121, 1st paragraph);
2º) that the offended be able to consent. It's necessary that the will be expressed by whom had already reached the penal ability, i.e., 18 years of age, not spotted by any cause that takes away its valid character (unimputability by mental decease, mistake, dolus or violence).

This way, in the crimes against the person, the juridical relevance of the offended's consent depends, at the first place, on the availability or non-availability of the juridical object. When the interest is disposable, the consent excludes the delict. When unavailable, the consent can attenuate the penalty, but never exclude the crime. When the interest is disposable, the simple presence of the victim's consent doesn't exclude the illicit character of the fact. As we saw, it's necessary that the subject who consents have capability to act.



3. Classification of the Crimes Against Life in the Brazilian Penal Code

Are against life the crimes of:

1º) homicide (article 121);
2º) participation in suicide (article 122);
3º) infanticide (article 123); and,
4º) abortion (articles 124 until 127).

As for the subjective or normative element, the crimes against life can be:
1º) dolosos (dolus, trickery, deceit, fraud; defect of heart);
2º) culposos (culpa, negligence or fault, imprudence and unskilfulness; defect of intellect)
3º) preterdolosos or preterintentionais (further-trickery or further-intention)

The trickery crimes against life are:
1 - simple homicide (article 121, caput);
2 - privileged homicide (article 121, 1st paragraph);
3 - qualified homicide (article 121, 2nd paragraph);
4 - inducement, instigation or support to suicide (article 122);
5 - infanticide (article 123);
6 - self abortion (article 124);
7 - abortion provoked without the consent of the pregnant (article 125); and,
8 - abortion provoked with the consent of the pregnant (article 126).

There's only one type of culposo crime against life: the simple or qualified culposo homicide (article 121, 3rd and 4th paragraphs).

There's just one typical further-trickery form of crime against life: qualified abortion by grievous bodily harm or death (article 127).

The Evolution of the Phenomenon of the Tributation

In past times, the State afforded the necessary expenditures to accomplish its finalities asserted itself in various means that are universally known along history, such as wars of conquests, extortion of other peoples, donations, manufacture of metallic and paper currencies, requirement of loans, incomes produced by its goods and its companies, imposition of penalties, and several others.

Many of these processes to obtain the public revenue were considered tributes. However, with the gradual evolution of the public expenses to face the growing plurality of the collective needs it became essential to the State to take hand of a regular and permanent source of financial resources. Thus, the State, based on its coercive force, made a partial subtract of the private wealth, without any counter installment. This way, the tribute started to be the main source of the public revenue and its payment is essential to finance all State activities. The exacerbation of the tributary phenomenon, though, ended up provoking fights between the people liable to pay a tribute versus the State.

The movements in that direction are well known in four great civilizations: Spain, England, Portugal and France.

In Spain, in the Courts of Lion, Alfonso IX declares in 1188, under oath, the principle of the tributary legality, according to which the taxes have to be voted by the contributors' commission agents before its collection. Withal this, the Courts of Lion in 1188 also declared the principle of the due process of law, by which the king was forbidden to proceed against the property or the person of the subject, before he wasn't called to defend himself at the curia.

In England, the fight between Pope Innocent III, King John ("John Without a Land") and his English Barons, culminated with the advent of the Magna Carta Libertatum of 1215, in which it was consigned the principle that no tribute or Scutage could be charged without the assent of the Council of the Kingdom, except the custom ones for the: (1) rescue of the king; (2) rise of the king's older son to the status of gentleman; or, (3) endows of the king's oldest daughter.

In Portugal, the Courts of Lamengo were convoked, in 1413 to legislate about taxes and the succession of the royal power in the Portuguese monarchy system.

In France, during the Ancien Régime , representatives of the nobility, clergy and people got congregated in the States-General and in the Provincial States almost always for the attainment of tributes, since the beginning of the XVI century until 1614, from when absolutists monarchs (Francis I, Henry IV and Louis XIV) sequentially dissolved these assemblies or let this matter drop, to impose legislations about tributes exclusively by themselves. Between 1787 and 1789, after the re-establishment of the States-General by King Louis XIV, as an disastrous effort to collect more taxes to ease the social tensions caused by the enormous France's financial crisis. It's the start of the free fall of the French monarchy and the empowerment of the Political Revolution. The king's figure is quickly exceeded by the importance of the events and Louis XIV desperately tries to empty the States-General for the lack of subject and measures to take, but it is too late for him to do so, because the members of the House of Representatives had already taken conscience of their force and was already too organized, proclaimed themselves the National Assembly and the National Assembly Constituent, subsequently.

The historical studies reveals that the exacerbation of tributation was often the direct or indirect cause of great revolutions or great social transformations, such as the Independence of the American Colonies (1776), the French Revolution (1789), and in Brazil, the "Inconfidência Mineira" (1789). This latter was the most genuine and idealist movement of the Brazilian nationality affirmation. The Inconfidência Mineira had as its essential motivation the economic bleeding provoked by the metropolis through the engrossment of the special tax, as it clarifies Paulo Roberto Cabral Nogueira ( Do Imposto Sobre Produtos Industrializados, São Paulo: Saraiva, 1981).

Nowadays, the principle o the tributary legacy, i.e., the taxes' income must be previously approved by the representatives of the people, is found in the Constitutions of all democratic countries. In Brazil, this principle is expressed since the first Republican Constitution of 1891 (vide CR/1891, article 72, paragraph 3rd). Even the granted Constitution of 1824, reserved to the private initiative of the chamber of deputies to legislate in substance of taxes (CR/1824, article 36, paragraph 1st).

From these facts, history comes to prove that fighting against non assented taxation and the abuse of coercive methods to collect it had pushed the development of nowadays concept of judicial security. Currently, the phenomenon of the tributation is totally jurisdicted, the tribute is a legal category disciplined by the Law. It only can be demanded through a legal relationship between the State and the subject-contributor, this liaison is derived exclusively from the Law and its collection, whether made through an Administrative activity or under a Judicial Process, has to observe the principle of the strict legality.