2.1-Alcance do processo: atos da vida priv; afast prev; meios de prova e val prob-Lectícia Alcântara

Hello, my name is Letícia Alcântara, I am a federal prosecutor and member of the Program for Assistance to Prevention and Combat Assault of the Federal Attorney General. In this class, I will talk about relevant aspects of the criminal or public disciplinary process.

This module will be divided into two parts. In the first, we will deal with the scope of the disciplinary administrative process, preventive-cautelary distance, evaluation and some of the means of evidence that are usually presented in the PAD processes that have as an object the curation of disciplinary infringement of sexual assault. In the second part of this module, we will address the other aspects of the sexual assault PAD.

Procedural Instruction, in which we will address the performance of the video conference, the Special Report for Minors , the final report of the PAD Commission, the legal framework for sexual harassment and the penalty for being sued by the agent who committed it.

So far, we have studied several aspects of sexual assault, such as concepts, its effects, means of prevention, legal developments and, in this module, we are dealing with administrative action and subsequent application of disciplinary sanction to the cause, if necessary.

We therefore selected some sensitive points of the Padre that encourage sexual harassment in order to draw attention and clarify the procedures that should be observed. The first point to be highlighted is precisely the reach of the Padre.

To know which acts must be the object of disciplinary action, we must observe Article 148 of Law 8.112/1993, which says: "The disciplinary process is the instrument intended to enforce the responsibility of the employer for infringement practiced in the exercise of its attributes or that has to do with the attributes of the position in which it is invested."

At this point, I draw attention to the second part of this article, which extends the scope of the procedure to achieve acts that also have to do with the attributions of the agent's position that commits the acceptance, that is, it will not matter if the act was committed outside the distribution environment or working hours.

It is enough that it has been practiced in the exercise of the agent's attributes, such as in travel, in service, for example, or that it keeps a direct or indirect relationship with the occupied position, with its attributes or with the institution to which the agent is linked.

The second point to be highlighted is the preventive distance from the agent, which may occur during the disciplinary administrative process or even before it. This distance is a cautelar measure provided in Article 147 of Law 8.112 of 1993, which aims to prevent the investigated servant from influencing the curation of irregularities.

In this case, once the agent is verified, the measure can be applied.

It is an act of competence of the instaurating authority and can be obtained by office or by provocation of the processing commission, formalized by means of portaria at any time of the process, when it is clear that the accused server, if his free access to distribution is maintained, can bring any harm to the operation, either destroying evidence, or coagulating with other stakeholders in the probatory instruction.

The term of eviction is 60 days, which can be extended for the same period, the term in which the evicted employee will remain receiving his remuneration. This has been a very effective measure in the sense of protecting the victim of sexual assault, which given the nature of the infraction, is often seen as coagulated with the need for coexistence with the agent in the same organizational environment.

Another very sensitive point of the disciplinary administrative process that seeks the approval of sexual assault practices is the probatory issue. This is because, due to its nature as sexual, the acts practiced by assailants, most of the time, occur in secret, without any testimony or record in written documents and, many times, without leaving any evidence.

In addition, as already seen in previous modules, harassment acts often involve a situation of hierarchy, whose victims are not rarely found in a vulnerable situation, which can make it impossible to verify the occurrence of the incident. By appreciating the evidence collected by the high officials of the PAD, the disciplinary commission must believe in the special relevance of the victim's word.

when it agrees with the elements that corroborate the other evidence collected during the process. It is, therefore, that the legal doctrine and legislation conceived as an index evidence, whose definition is found in Article 239 of the Criminal Code, which thus establishes:

Consider this evidence the known and proven circumstance that, having relation with the fact, authorizes, by induction, to conclude the existence of another or other circumstances. The evidence is that indirect evidence through which it is able to demonstrate the occurrence of facts or facts that keep in mix of causality with the fact that it intends to demonstrate.

It is thus a essentially probalistic means of evidence and has been accepted by the judiciary in the cases of crimes against customs, as in the Procedure of New Orders, 109.390, of September 18, 2012, of the Ministry of Justice's report.

We can cite as examples the confirmation of the victim's behavior change at the same time as the facts: job losses, psychological reports and all other types of evidence that are able to demonstrate, even indirectly, the occurrence of sexual assault. It is good to emphasize that it is not about giving absolute value to the victim's word, in the detriment of the defendant's claim.

However, in the face of the impossibility of testimonial or documentary confirmation of the event, it is possible to conclude by the occurrence of sexual harassment through the victim's report when consistent and harmonious with the other elements of the act.

Even within this probatory aspect, another point of doubt of the PARI commissions has been the possibility of the admission of prints, text messages and audio extracted from social networks, such as WhatsApp, Telegram, Facebook, Instagram and others. However, it is possible to state that this modality of proof can be admitted in the processes that aim at the curation of sexual assault.

either by evaluating the evidence, as we saw earlier, or by applying Article 331, paragraph 1 of the Civil Code. This understanding even finds support in the jurisprudence, both of the Labor Justice and the Common Justice. The processing commission must add to the audits of the process the prints of text messages, as well as the digital media with the content of the audits.

The processing commission must draft the document on the documents added, making the digital media of which it was extracted, indicating the date, time of the conversations, the phone number and the social network where the conversation was held. The transcription for the process must preserve the order of sending the messages so that the content can be understood in its context.

Eventual impugnação sobre a integridade e autenticidade do conteúdo deve ser argumentada e comprovada pelo acusado por meio da apresentação de contraprova, ou seja, dos prints e áudios da conversa, a fim de que sejam igualmente juntados aos áudios, confrontados e analisados pela comissão.

as well as prints and audio extracts from applications and social networks, environmental recording carried out by the victim has also been admitted. Once again, it is necessary to highlight the difficulty of producing evidence in cases of crime of sexual nature, so that the jurisprudence has admitted the adoption of this evidence, recognizing the state of necessity of the victim, this being often the only available resource for her.

In this case, the Commission must also join the digital media process with the recording, labeling the corresponding act with the report and the decision of its joining.

In the same way that the messages of the applications, possibly in combination with the authenticity and integrity of the content, must be accompanied by the counter-examination, which should be joined to the articles in the same way that the messages of the conversation applications are eventually presented by the court.

Well, we have reached the end of this first part and I hope you have understood all the matter so far. I thank you all for your attention and I invite you to watch the second part of this module, which will deal with other relevant points of the disciplinary administrative process.