Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 203º CPP – Testimony of the witness.

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Art. 203. The witness will, under word of honor, promise to tell the truth of what he knows and is asked, and must declare his name, his age, his state and residence, his profession, place where he carries out his activity, if he is relative, and to what degree, of any of the parties, or what is your relationship with any of them, and report what you know, always explaining the reasons for your knowledge or the circumstances by which you can evaluate your credibility .

Characterization of false testimony

Refusal to provide data:  If the witness refuses to provide his data, such as his name, age, marital status, residence, profession, there are three positions regarding the committed crime: disobedience ( article 330 of the CP ), false identity ( article 307 of the CP ) and false testimony ( Article 342 of the CP ). “Shut up the truth” is included in the criminal type of  article 342 of the CP (device with criminal typicality of multiple content). False testimony is special in relation to disobedience, since the agent is in the audience practicing the act of testifying. The sentence for the crime of false identity reads “detention, from three months to one year, or a fine, if the fact does not constitute an element of a more serious crime”. However, the penalty for the offense of false testimony is higher than that for the offense of false identity. Therefore, if the witness refuses to provide his data, he is liable for false testimony.

Witness who is silent:  As stated above, “silence the truth” constitutes a criminal type of  article 342 of the CP :  Making a false statement, or denying or silting the truth as a witness, expert, accountant , translator or interpreter in a judicial or administrative process, police investigation, or arbitration court: Penalty – imprisonment, from 2 (two) to 4 (four) years, and fine.

Lack of commitment and false testimony:  The lack of commitment to tell the truth does not disqualify the crime of false testimony. In this crime, commitment is not an element of the criminal type.

Jurisprudence

Offense to the principle of non-self-incrimination. Complaint based solely on a confession made by a person heard as a witness:  It offends the principle of non-self-incrimination. regarding the right to remain silent ( RHC 122.279/RJ, rel. Min. Gilmar Mendes, judged on 8/12/2014, judgment published in the DJE of 10/30/2014  – Newsletter 754, Second Panel).

Those who do not commit

No commitment : The mentally ill and handicapped and those under 14 years of age do not commit, nor do the people referred to in  article 206  (see  article 208 ).

False testimony and retraction

Withdrawal of the witness before sentencing: Article 342, paragraph 2, of the CP  provides  that false testimony ceases to be punishable if the witness withdraws before sentencing:  The fact ceases to be punishable if, prior to sentencing in the proceeding that the offense occurred, the agent recants or declares the truth .

Jurisprudence

Offense to the principle of non-self-incrimination. Complaint based solely on a confession made by a person heard as a witness:  It offends the principle of non-self-incrimination. regarding the right to remain silent ( RHC 122.279/RJ, rel. Min. Gilmar Mendes, judged on 8/12/2014, judgment published in the DJE of 10/30/2014  – Newsletter 754, Second Panel).

Witness who hears say and confirmation of previous testimony

Testimony by “hearsay”:  The value of testimony is seen with restrictions, but there is no prohibition on questioning a witness who did not see the facts, who only heard about them (indirect witness).

Confirmation of previous testimony:  The testimony given in court has no probative value and is limited to confirming the terms of the previous testimony provided in the investigation phase, since it is essential that the witness reports the fact before the parties with submission to the contradictory of the instruction procedural.

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