Criminal Procedure in Brazil
Introduction
Criminal procedure in Brazil is governed primarily by the Criminal Procedure Code (CPP, Decree-Law 3.689/1941), which reflects an inquisitorial heritage that has been progressively reformed to incorporate adversarial elements and human rights protections. The 1988 Federal Constitution established fundamental criminal procedure principles, including the presumption of innocence, due process, adversarial proceedings, and full defense. Significant reforms, particularly Law 13.964/2019 (the Anti-Crime Package), have modernized the system.
Constitutional Principles
Presumption of Innocence
Article 5, LVII establishes that “no one shall be considered guilty until a final and unappealable criminal conviction.” The STF in HC 124.306 (2016) confirmed that this principle prohibits imprisonment before all appeals are exhausted.
Due Process and Full Defense
Article 5, LIV guarantees due process of law, and Article 5, LV guarantees adversarial proceedings and full defense. These provisions require: (i) notice of charges; (ii) opportunity to respond; (iii) right to counsel; (iv) right to present evidence; and (v) right to cross-examine witnesses.
Investigation Phase
Police Investigation
Criminal investigation is conducted through the police inquiry (inquérito policial), an administrative proceeding conducted by the police, supervised by the judiciary and the Public Prosecutor’s Office. The inquiry is inquisitorial and written, with limited adversarial participation.
Judicial Control
The judge may: (i) issue search and arrest warrants; (ii) authorize wiretapping and other investigative measures; (iii) order pre-trial detention; and (iv) rule on habeas corpus.
Pre-Trial Detention
Types
The CPP provides for: (i) pre-trial detention (prisão preventiva), requiring specific grounds (risk of flight, danger to investigation, danger to public order); (ii) temporary detention (prisão temporária), for 5 days (extendable to 10) during investigation; and (iii) arrest in flagrante (prisão em flagrante), when the person is caught committing the crime.
Alternatives
The CPP provides alternatives to detention: (i) bail (fiança); (ii) provisional release (liberdade provisória); (iii) house arrest; and (iv) other measures (electronic monitoring, travel restrictions, periodic court appearances).
Prosecution Phase
Indictment
The Public Prosecutor’s Office has the exclusive power to initiate public criminal prosecution (ação penal pública). The indictment (denúncia) must describe the facts, identify the accused, and specify the legal classification.
Plea Bargaining (2019)
Law 13.964/2019 introduced the non-prosecution agreement (acordo de não persecução penal, ANPP), a form of plea bargaining for non-violent crimes with minimum penalties under 4 years. The accused admits the facts and accepts conditions (fine, community service, restrictions) in exchange for non-prosecution.
Trial
Procedure
Criminal trials follow an accusatorial model with: (i) reading of charges; (ii) hearing of the accused; (iii) testimony of witnesses; (iv) expert evidence; (v) closing arguments; (vi) jury deliberation (for certain crimes); and (vii) sentencing.
Jury Trial
The Jury Court (Tribunal do Júri, Article 5, XXXVIII) hears cases involving intentional crimes against life (homicide, infanticide, abortion). The jury of seven citizens decides guilt or innocence by secret vote.
Appeals
Appeals Structure
Criminal appeals include: (i) recurso em sentido estrito (limited appeal); (ii) apelação (full appeal); (iii) embargos de declaração (clarification); (iv) recurso especial (to STJ); (v) recurso extraordinário (to STF); and (vi) habeas corpus (at any time).
Double Degree
Brazilian law does not require mandatory appellate review of convictions, though appeals are available as a matter of right.
The Anti-Crime Package (Law 13.964/2019)
Major Changes
The Anti-Crime Package (Pacote Anticrime) introduced: (i) the judge of guarantees (juiz das garantias), separating the judge who oversees the investigation from the trial judge; (ii) plea bargaining for non-violent crimes; (iii) stricter pre-trial detention rules; (iv) strengthening of asset forfeiture; (v) changes to the execution of sentences; and (vi) the plea of non-prosecution.
Conclusion
Brazilian criminal procedure has evolved from an inquisitorial to an accusatorial system, particularly through the 1988 Constitution and subsequent reforms. The presumption of innocence, due process guarantees, and the progressive introduction of adversarial elements and plea bargaining have modernized the system. Ongoing challenges include the balance between effective investigation and rights protection, prison conditions, and the implementation of the Anti-Crime Package’s reforms.