As I've always understood it, the instruction phase follows the investigation phase where there is an intention to prosecute.
Where there is no intention to prosecute, the instruction phase simply doesn't apply.
I can't cite a source. That is my memory of the gist of Stinky Sardine's posts on the old 3As.
I was a disciple of Stinky Sardine, incidentally ...
21 steps to trial by StinkySardine at the 3 A's
1 - Police has knowledge of ‘occurence’. Decides if it likely to be a crime
2 – After Max 10 days, if it is likely to be crime, has to report to the Prosecutor Services (Ministério Público)
3 – The INQUIRY PHASE begins. The Ministério Público (MP) starts the investigation. A prosecutor heads the investigation, with the help of the police. Under certains circumstances, this phase can be under secrecy of justice (new code. Previously it was, by default under secrecy of justice).
4 – Some powers can be delegated by the Ministério Público to the police (PJ)
5 – All is overseen by an INSTRUCTION JUDGE which has to approve certain measures like preventive arrest, etc.
6 – Art. 58 determines when and how the arguido status is given at this phase. Why’s that? Because Art. 57 defines the arguido as the person against whom charges are layed or against whom instruction is required (ie, the general legal rule is that the arguido is only arguido when charged with the exceptions of art. 58 – which are many, actually). The arguido remains an arguido until the end of the whole process.
7 – When the inquiry phase ends, the Ministério Público will have to decide whether or not to lay charges. Art. 279 regulates in which cases the inquiry can be re-opened if the MP decides not to lay charges.
8 – If the MP decides to lay charges (if enough INDICATIONS have been collected), then:
9 – The INSTRUCTION PHASE begins. This phase is OPTIONAL. The arguido has to request it. If not, it goes directly to trial.
10 – The instruction phase is LED by the instruction judge (vs. ‘overseen’ as in the inquiry phase).
11 – The instruction phase is made of all instructory acts that the judge decides are necessary and including, ALWAYS, an INSTRUCTORY DEBATE which is an oral and adversarial instructory act, performed with all parties present, presided by the judge.
12 – Both the MP and the arguido can assist to ALL instructory acts. They can also request any explanations or ask to the judge to ask any questions they find necessary to discover the truth, including calling witnesses or requiring further diligences. The judge can delegate some of this diligences in the PJ. Remember that even those performed by the PJ can be assisted by the arguido
13 – The judge can deny requests that are obviously not necessary to discover the truth and/or have as purpose the delay of the process.
14 – All acts and diligences performed in the inquiry phase NEED NOT be repeated as long as they followed the correct legal form or when such repetition is crucial to the purposes of the instruction phase
15 – No CHARACTER WITNESSES are allowed at this phase. Actually, art. 128 restricts their use.
16 – At the instructory debate is basically a rather informal ‘get together’ where everybody discusses what has been done so far so the judge will have a clearer perception if the is enough for an indictment or not.
17 – In this case (no preventive prisioners), the judge will have FOUR MONTHS for the INSTRUCTION PHASE (counting from the date of the request to open that phase)
18 – The judge then makes the INSTRUCTORY DECISION which is to make the indictment or not. If so, it goes to trial. If not, it doesn’t.
19 – The instructory decision is unappealable, unless it’s null.
20 – It can be null if the Decision amounts to facts that are substantially distinct from the facts that originated the charge. In that case, the judges should have sent the whole thing back and the MP should do it all over. If during the instruction phase, there are only minor differences between charge and facts leading to the indictment, then the whole this is ‘adjusted’ at this phase. THIS IS IMPORTANT AND EXPLAINS WHY IS CAREFUL TO MAKE A ‘BULL’S EYE’ CHARGE!
21 – The TRIAL PHASE begins. A new judge (a panel of 3 actually), with the possibility of a jury – under certain circumstances and rather rarely used.
