The functional independence and the postulation of the Public Ministry directly in the courts: inevitable collisions of ministerial interests of different instances and branches

Abstract

The goal of the present study is to show an interesting situation that sometimes puts ministerial organs of different instances or ministerial organs of different areas in antagonistic positions. This conflicting interest is based in the constitutional principle of functional independence and it is applicable for both parts involved in the conflict. In this context, we attempt to establish the differential of the Public Prosecutor’s Office as a part in the process as well as guardian of law. This differential is very important in the face of conflicts that arise when a first-degree member intends to act in Courts of Justice, Regional Federal Courts or Superior Courts of Justice. There are clashes too, when a first-degree member acts in a competence of Justice different from the one where he should act. The article also attempts to identify the limits and the coverage of the direct postulation exercise to the Courts through several areas of the public prosecutor's office, as well its legitimacy to act in other lines of Justice. Based on the constitutional design of the Brazilian Public Prosecutor’s Office and the divisions of its original duties, the analysis includes the postulation of a Ministerial Institution member against an act of a superior in the Public Prosecutor’s Office.