Express constitutional principles and the limits on police commissioners’ authority to initiate criminal investigations

Abstract

This paper analyzes the express constitutional principles and the material and interpretative limits imposed on the action of the Police Chief in the preparation of the police investigation, and the search for investigative efficiency cannot override the fundamental guarantees of the investigated person (Lopes Jr., 2023). As it is the initial moment of criminal prosecution and devoid of full adversarial proceedings, the police investigation concentrates the greatest risk of violation of fundamental rights (Lima, 2023). The general objective is to analyze the explicit limits imposed on the action of the police authority. As specific objectives, it seeks to identify the material limits, restricted proceedings due to jurisdiction reserve, use of force and integrity with prohibition of self-incrimination (nemo tenetur se detegere - art. 5, LXIII, CF), temporal deadlines (art. 10, CPP and art. 5, LXXVIII, CF) and unavailability (art. 17, CPP) which prohibits the police chief from archiving records (Marques, 1997; Tourinho Filho, 2023) - and the interpretative limits - strictly informative nature, prohibition of exclusive conviction based on the investigation (art. 155, CPP) (Lopes Jr., 2023; Nucci, 2023) and reading of defensive rights with the lawyer's access to evidence already documented (art. 7, XIV, Law 8.906/94 and Binding Precedent 14, STF). The methodology is qualitative, deductive, bibliographic and documentary, based on the doctrine of Marques (1997), Tourinho Filho (2023), Capez (2023), Lima (2023), Lopes Jr. (2023) and Nucci (2023) and on the jurisprudence of the STF and STJ. It is concluded that respect for material and interpretative limits and for express constitutional principles is a condition of legitimacy of the police investigation and a guarantee of the right to a fair trial, under penalty of nullity and liability for abuse of authority (Law 13.869/19).