The Functions Essential to Justice

Section 1: The Public Prosecution

Article 127. The Public Prosecution is a permanent institution, essential to the jurisdictional function of the State, and it is its duty to defend the juridical order, the democratic regime and the inalienable social and individual interests.

Paragraph 1. Unity, indivisibility and functional independence are institutional principles of the Public Prosecution.

Paragraph 2. The Public Prosecution is ensured of functional and administrative autonomy, and it may, observing the provisions of article 169, propose to the Legislative Power the creation and abolishment of its offices and auxiliary services, filling them through a civil service entrance examination of tests or of tests and presentation of academic and professional credentials, the remuneration policies, and the career plans; the law shall provide for its organization and operation.

Paragraph 3. The Public Prosecution shall prepare its budget proposal within the limits established in the law of budgetary directives.

Paragraph 4. If the Public Prosecution does not forward its respective budget proposal within the time period stipulated in the law of budgetary directives, the Executive Power shall, with a view to engrossing the annual budget proposal, take into account the figures approved in the current budgetary law, such figures adjusted in accordance with the limits stipulated under the terms of paragraph 3.

Paragraph 5. If the budget proposal referred to in this article and thus forwarded does not obey the limits stipulated under paragraph 3, the Executive Power shall effect the necessary adjustments with a view to engrossing the annual budget proposal.

Paragraph 6. In the implementation of the budget of a specific fiscal year, no expenses may be incurred and no obligations may be assumed that exceed the limits stipulated in the law of budgetary directives, except when previously authorized, by opening supplementary or special credits.

Article 128. The Public Prosecution comprises:

1. the Public Prosecution of the Union, which includes: a) the Federal Public Prosecution; 96 b) the Labour Public Prosecution; c) the Military Public Prosecution; d) the Public Prosecution of the Federal District and the Territories;
2. the Public Prosecutions of the states.

Paragraph 1. The head of the Public Prosecution of the Union is the Attorney-General of the Republic, appointed by the President of the Republic from among career members over thirty-five years of age, after his name has been approved by the absolute majority of the members of the Federal Senate, for a term of office of two years, reappointment being allowed.

Paragraph 2. The removal of the Attorney-General of the Republic, on the initiative of the President of the Republic, shall be subject to prior authorization by the absolute majority of the Federal Senate.

Paragraph 3. The Public Prosecutions of the states, of the Federal District and the Territories shall prepare a list of three names from among career members, under the terms of the respective law, for the selection of their Attorney-General, who shall be appointed by the Head of the Executive Power for a term of office of two years, one reappointment being allowed.

Paragraph 4. The Attorneys-General in the states, in the Federal District and the Territories may be removed from office by deliberation of the absolute majority of the Legislative Power, under the terms of the respective supplementary law.

Paragraph 5. Supplementary laws of the Union and of the states, which may be proposed by the respective Attorneys-General, shall establish the organization, the duties and the statute of each Public Prosecution, observing, as regards their members:

1. the following guarantees: a) life tenure, after two years in office, with loss of office only by a final and unappealable judicial decision; b) irremovability, save for reason of public interest, through decision of the competent collegiate body of the Public Prosecution, by the vote of the absolute majority of its members, full defense being ensured; c) irreducibility of compensation, stipulated according to article 39, paragraph 4, and with due regard for the provisions of articles 37, X and XI, 150, II, 153, III, 153, paragraph 2, I;
2. the following prohibitions: costs; a) receiving, on any account or for any reason, fees, percentages or court b) practicing the legal profession; c) participating in a commercial company, under the terms of the law; d) exercising, even when on paid availability, any other public function, except for a teaching position; e) engaging in political or party activities;

97f) receiving, on any account or for any reason, financial aid or contribution from individuals, and from public or private institutions, save for the exceptions set forth in law.

Paragraph 6. The provisions of article 95, sole paragraph, V, shall apply to the members of Public Prosecution.

Article 129. The following are institutional functions of the Public Prosecution:

1. to initiate, exclusively, public criminal prosecution, under the terms of the law;
2. to ensure effective respect by the Public Authorities and by the services of public relevance for the rights guaranteed in this Constitution, taking the action required to guarantee such rights;
3. to institute civil investigation and public civil suit to protect public and social property, the environment and other diffuse and collective interests;
4. to institute action of unconstitutionality or representation for purposes of intervention by the Union or by the states, in the cases established in this Constitution;
5. to defend judicially the rights and interests of the Indian populations;
6. to issue notifications in administrative procedures within its competence, requesting information and documents to support them, under the terms of the respective supplementary law;
7. to exercise external control over police activities, under the terms of the supplementary law mentioned in the previous article;
8. to request investigatory procedures and the institution of police investigation, indicating the legal grounds of its procedural acts;
9. to exercise other functions which may be conferred upon it, provided that they are compatible with its purpose, with judicial representation and judicial consultation for public entities being forbidden.

Paragraph 1. Legitimation by the Public Prosecution for the civil actions set forth in this article shall not preclude those of third parties in the same cases, according to the provisions of this Constitution and of the law.

Paragraph 2. The functions of Public Prosecution may only be exercised by career members, who must reside in the judicial district of their respective assignment, save when otherwise authorized by the head of the institution.

Paragraph 3. Admission into the career of Public Prosecution shall take place by means of a civil service entrance examination of tests and presentation of academic and professional credentials, ensuring participation by the Brazilian Bar Association in such examination, at least three years of legal practice being required of holders of a B.A. in law, and observing, for appointment, the order of classification.

Paragraph 4. The provisions of article 93 shall apply to the Public Prosecution, where appropriate.

Paragraph 5. In the Public Prosecution, proceedings will be assigned immediately upon filing.

Article 130. The provisions of this section concerning rights, prohibitions and form of investitute apply to the members of the Public Prosecution before the Audit Courts.

Article 130-A. The National Council of the Public Prosecution is composed of 14 members appointed by the President of the Republic, after their nomination has been approved by the absolute majority of the Federal Senate, for a two-year term of office, one reappointment being permitted, as follows.

1. the Attorney-General of the Republic, who chairs the Council;
2. four members of the Public Prosecution of the Union, representing each one of its careers;
3. three members of the Public Prosecution of the States;
4. two judges, one of whom nominated by the Supreme Federal Court and the other one by the Superior Court of Justice
5. two lawyers, nominated by the Federal Board of the Brazilian Bar Association
6. two citizens of notable juridical learning and spotless reputation, one of whom nominated by the Chamber of Deputies and the other one by the Federal Senate.

Paragraph 1. The members of the Council who are members of the Public Prosecution shall be nominated by their respective bodies, under the terms of the law.

Paragraph 2. It is incumbent upon the National Council of the Public Prosecution to control the administrative and financial operation of the Public Prosecution and the proper discharge of official duties by its members, and it shall:

1. ensure that the Public Prosecution is autonomous in its operation and administration, and it may issue regulatory acts within its jurisdiction, or recommend measures;

2. ensure that article 37 is complied with, and examine, ex-officio or upon request, the legality of administrative acts carried out by members or bodies of the Public Prosecution of the Union and of the States, and it may revoke or review them, or stipulate a deadline for the adoption of the necessary measures to achieve due execution of the law, without prejudice to the powers of Audit Courts

3. receive and examine complaints against members or bodies of the Public Prosecution of the Union or of the States, including against their ancillary services, without prejudice to such institutions’ disciplinary competence and their power to correct administrative acts, and it may order that pending disciplinary proceedings be forwarded to the National Council of the Public Prosecution, determine the removal, placement on paid availability, or retirement with compensation or pension in proportion to the length of service, and enforce other administrative sanctions, full defense being ensured;

4. review, ex-officio or upon request, disciplinary proceedings against members of the Public Prosecution of the Union or of the States tried in the preceding 12 months;

5. prepare a yearly report, including the measures it deems necessary, on the state of the Public Prosecution in the Country and on the Council’s activities, which report must be an integral part of the message referred to in article 84, XI.

Paragraph 3. The Council shall, by means of secret voting, choose a national Corregidor, from among the members of the Public Prosecution who compose the Council, reappointment being forbidden, and the following duties shall be incumbent upon him, in addition to those that may be conferred upon him by law:

1. to receive complaints and accusations from any interested party regarding members of the Public Prosecution and its ancillary services
2. to exercise executive functions of the Council concerning inspection and general correction
3. to requisition and appoint members of the Public Prosecution, delegating specific duties to such members, and to requisition employees of Public Prosecution bodies.

Paragraph 4. The Chairman of the Federal Board of the Brazilian Bar Association shall be competent to petition before the Council.

Paragraph 5. Federal and state legislation shall establish ombudsman’s offices for the Public Prosecution, with powers to receive complaints and accusations from any interested party against members or bodies of the Public Prosecution, including against their ancillary services, thus presenting formal charges directly to the National Council of the Public Prosecution.