Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 110º CPP – Lis pendens, illegitimacy and res judicata.

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Art. 110. In the exceptions of lis pendens, illegitimacy of the party and res judicata, the provisions on the exception of incompetence of the court will be observed, in what is applicable to them.
§ 1 If  the party has to object to more than one of these exceptions, it must do so in a single petition or pleading.
§ 2 The  exception of res judicata can only be opposed in relation to the main fact, which has been the subject of the sentence.

lis pendens exception

Lis pendens. Peremptory exception:  The lis pendens exception aims to extinguish the punitive claim. Therefore, it is peremptory. The peremptory effect of the exception of lis pendens is not always verified in the process in which it is accused. It may happen on the other. See subheading  Who’s who  in the heading Objection, Dilatory and Peremptory Exceptions , in comments to Article 95.

Identity between two processes:  In civil proceedings, two processes are identical when they have the same claim, the same parties and the same cause of action. In criminal proceedings, no. The identity of the criminal process lies  in the fact and in the identity of the accused. And that’s all. It is not the narrative of fact. Two complaints can narrate the same fact in different ways. Denunciations contain versions of the fact, as they constitute an attempt at historical reconstruction of the fact. They are not the fact itself, and therefore their narratives are never identical. Two complaints dealing with the same fact may contain different requests, and for that it is enough that they classify the offenses differently in the incriminating law, that the penalties claimed will be different, not to mention some complementary requests that one complaint may contain, and another may not. The same fact may be accused by a private individual, through a complaint (subsidiary private criminal action –  article 29 of the CPP ) in one case, and the Public Ministry with a complaint in another. Therefore, importing, as elements that identify the action, the request, the same parties, the same cause of action  from the civil procedural doctrine to the criminal procedural is a mistake. Relatively common, by the way. 

Who can argue:  The Public Prosecutor, the accused and the defendant can make an exception to lis pendens. The judge must recognize ex officio whenever he recognizes it.

Initial moment of lis pendens:  Lis pendens is characterized by two ongoing criminal proceedings dealing with the same fact (as the object of the accusation) and the same accused. The criminal procedural law does not identify when it starts. There are those who understand that Article 240 of the CPC is applicable, by analogy,  whereby valid citation induces lis pendens. In our view, with proceedings in progress in district A, at the time that a complaint is received for the same fact against the same accused in district B, lis pendens will already be characterized, since the State-Judge, upon receiving the initial part of the process , is admitting a second accusation against the same accused based on the same fact. 

Applicable appeals and actions:  If the exception of lis pendens is upheld, an appeal in the strict sense may be made ( article 581, item III ). If the lis pendens is recognized ex officio, extinguishing the process, the appropriate remedy is the appeal, based on  article 593, item II , as it is a final decision. There is no specific appeal provided by law for the decision that dismisses the lis pendens exception. Appropriate, in the hypothesis, the  habeas corpus , or even the claim of absolute nullity of the process in preliminary appeal.

Which process will remain active:  If there is lis pendens, which process should remain active? The subject is controversial. There are several understandings: (1) the process that must remain active is the one in which the complaint was verified first; (2) the date of receipt of the complaint is valid; (3) the date of citation; (4) Renato Brasileiro de Lima, in comments on Article 110 of the CPP, a doctrine that prevention or distribution criteria must be taken into account. “If a judge became preventive in the first place, because he decreed a preventive measure still in the investigation phase, he is the competent one to prosecute the accused. If there was no reason for prevention, the criterion of distribution is used, prevailing the judgment that precedes the other” (Lima, Renato Brasileiro.  Code of Criminal Procedure Commented. 2nd. Ed. Publisher Juspodivm: 2017).

Inquiry and criminal proceedings and lis pendens:  Technically, lis pendens between police investigations and criminal proceedings is not allowed. In any case, if the hypothesis occurs, it is appropriate to file a writ of  habeas corpus  in order to stop the police investigation, here is the illegal coercion due to lack of just cause to continue the investigations ( article 648, item I ). Adequate, still,  habeas corpus  if any, related to the same fact and agent/indicted/accused: two investigations; an investigation in progress at the Police and another judicially archived; an investigation filed judicially and a lawsuit in progress. In these cases, the basis of  habeas corpus will not be lis pendens, but the absence of just cause. Even, it should be noted, the exception of lis pendens is unacceptable, since there are not two complaints received. 

Jurisprudence

Two convictions for identical facts prevails the most favorable:  Attribution of the same criminal fact in different criminal actions that were processed in different courts. Occurrence of res judicata. Prevalence of the conviction most favorable to the agent. In view of the final and unappealable judgment of two convictions for identical facts, the sentence more favorable to the defendant must prevail ( HC 281.101-SP, Justice Sebastião Reis Júnior, unanimously, judged on 10/03/2017, DJe 11/24 /2017  (Newsletter 616).

exception of illegitimacy

Illegitimacy of part. Exception sometimes dilatory, sometimes peremptory:  If the Public Prosecutor offers a complaint in a crime of private action, the exception is peremptory, since the Public Prosecutor’s Office lacks legitimacy, and this nullity cannot be corrected, it is absolute. If the complaint is filed by an offended person under the age of 18, the exception of illegitimacy is dilatory. The act may be corrected with the intervention of the minor’s representative, ratifying the procedural acts. 

Illegitimacy  ad causa  and  ad processum :  Illegitimacy  ad causa  is the illegitimacy of the party. For example, the Public Prosecutor’s Office is an illegitimate party to propose criminal action in a private action crime. Illegitimacy  ad processum  is the illegitimacy of the party’s representative. The minor must be represented, in principle, by his parents (their legal representatives), not by his brother.

Active and passive illegitimacy:  Active illegitimacy is verified when, for example, the victim files a complaint in a public action crime (can only do so in the event of inertia by the MP – article 29 of the CPP). Passive, when it is clear that the accused is not the perpetrator (father accused of the crime committed by the child solely because he is the father). It is not customary in criminal proceedings. refer to the expression passive illegitimacy. This expression is most often used in civil proceedings. In criminal proceedings, it is only said that the accused is not the author of the fact narrated in the initial accusation.

Who can argue:  The Public Prosecutor, the accused and the defendant can exception the illegitimacy. The judge must recognize the illegitimacy ex officio, whenever he identifies it.

Illegitimacy of the party, absolute nullity, non-preclusion:  Article 564, item II, fulminates with the sanction of absolute nullity the process when there is illegitimacy of the party. This nullity is insurmountable. The process must be terminated. There is no preclusion in the face of lack of argument. It can be accused at any stage of the process, even against res judicata.

Illegitimacy of the party’s representative:  Nullity due to illegitimacy of the party’s representative can be remedied at any time, through ratification of procedural acts ( article 568 ). If, for example, the complaint is filed personally by the incapacitated person, or by the minor orphan, the nullity can be corrected by confirming the validity of the complaint by the guardian, or by the guardian, respectively.

Appropriate appeals and actions:  The exception of illegitimacy being upheld, an appeal in the strict sense may be made ( article 581, item III ). If illegitimacy is recognized ex officio, extinguishing the process, the appropriate resource is the appeal, based on  article 593, item II , as it is a definitive decision, and which puts an end to the process. There is no specific appeal provided by law for the decision dismissing the exception of illegitimacy. Applicable, in the hypothesis, the  habeas corpus , or even the claim of absolute nullity of the process, based on  article 564, item II , in preliminary appeal.

exception of res judicata

Thing judged. Peremptory exception:  The res judicata exception aims to extinguish the punitive claim. Therefore, it is peremptory.

Pertinence of the exception:  In the event of an ongoing criminal proceeding identical to another already final and unappealable, an exception of res judicata is applicable. Two lawsuits are identical when the imputation deals with the same fact and accused (see subheading  Identity between two lawsuits under the heading Exception of lis pendens, in comments to this Article 110).

Subjective limits of res judicata:  Res judicata only affects those who were sentenced in the process when there are no more resources. If A was definitively sentenced in case X for crime Y, the res judicata concerns only A. There is no impediment to the filing of a new case for the same crime Y against B. In other words, the circumstance of a final and unappealable decision relating to particular crime and person does not prevent another person from being prosecuted for the same offense in a new process.

Who can argue:  The Public Prosecutor’s Office, the accused and the defendant can make an exception to res judicata. The judge must recognize ex officio whenever he recognizes it.

Applicable appeals and actions:  If the res judicata exception is accepted, an appeal in the strict sense may be filed ( article 581, item III ). If the res judicata is recognized ex officio, extinguishing the process, the appropriate resource is the appeal, based on  article 593, item II , as it is a final decision. There is no specific appeal provided by law for the decision dismissing the exception. Applicable, in the hypothesis, the  habeas corpus , or, even, the claim of absolute nullity of the process in preliminary appeal.

Continued crime:  When the agent, through more than one action or omission, practices two or more crimes of the same kind and, due to the conditions of time, place, manner of execution and other similar ones, the subsequent ones must be considered as a continuation of the first one, if is faced with continued crime. In this case, the penalty of only one of the crimes is applied, if the penalties are identical, or the most serious, if different, increased, in any case, from one sixth to two thirds (article 71 of the CP ) . The ongoing crime process, in which there is a final and unappealable decision in relation to other offenses that are part of the “continued crime set”, is not affected by the res judicata. The process must proceed to its end. The unification of sentences is carried out at the end, in the sentence execution phase. As decided by the article 66, item III of Law 7.210/1984 , it is up to the execution judge to decide on the sum or unification of penalties. It is similar to what happens with connection or continence. According to  article 82 of the CPP , if, with a connection or continuity, different processes are instituted that ran before other judges and which already have a final sentence, the unity of the processes will only be given, subsequently, for the purpose of summing up or unifying of the feathers.

Archived investigation:  If the investigation is archived at the request of the Public Prosecutor’s Office, a new action cannot be proposed based on a new investigation or other informational documents, under penalty of violating the principle of res judicata. It will be necessary to unarchive the survey. However, the judicial archiving of the inquiry becomes  res judicata ,  the expression used in the sense that this decision will only be modified if new evidence emerges. It is the principle of stability of judicial decisions overcoming the principle of investigation of the crime. The new test, as recorded by the STF, must be substantially innovative and not just formally new (RT 540/393). See  Precedent 524 of the STF  (RJTJRS 101/35) – (also see  jurisprudence subsequent to the publication of the Precedent).

Jurisprudence

Hypothesis of relativization of res judicata:  After the final and unappealable decision of two decisions condemning the agent for the commission of a single crime – the first issued by an absolutely incompetent state court and the second issued by a constitutionally competent federal court –, the previous conviction must be annulled if it turns out that a greater penalty was imposed on it than the one fixed later ( STJ, HC 297.482-CE, Judge Felix Fischer, judged on 5/12/2015, DJe 5/21/2015 – Newsletter 562 ).

Two convictions for identical facts prevails the most favorable:  Attribution of the same criminal fact in different criminal actions that were processed in different courts. Occurrence of res judicata. Prevalence of the conviction most favorable to the agent. In view of the final and unappealable judgment of two convictions for identical facts, the sentence more favorable to the defendant must prevail ( HC 281.101-SP, Justice Sebastião Reis Júnior, unanimously, judged on 10/03/2017, DJe 11/24 /2017  (Newsletter 616).

Procedure for lis pendens, illegitimacy and res judicata exceptions

Procedure for exceptions:  Having knowledge of lis pendens, illegitimacy or res judicata, the judge must declare them regardless of any provocation by the parties. In the exceptions promoted by the parties, the provisions on the exception of lack of jurisdiction of the court must be observed, in what is applicable to them. The parties must argue them at the first opportunity in which they manifest themselves in the records. However, if they do not, there is no preclusion. As a rule , says  article 111 , the exception does not suspend the main action. As a rule,  it means that the judge, considering the specific case, may consider it prudent to suspend. The exception petition must be presented together with the prior defense, but separately, in a separate petition ( article 396-A). Article  111  repeats the same command by saying that exceptions will be processed in separate records. Idem,  paragraph 1 of this Article 110 :  If the party has to object to more than one of these exceptions, it must do so in a single petition or pleading . One more piece of information contained in this paragraph 1: if more than one exception is to be filed, they must be included in the same petition.

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