Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 222º CPP – Inquiry by precatory.

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Art. 222. The witness who lives outside the jurisdiction of the judge will be  questioned by the judge of the place of his residence, issuing, for this purpose, a letter rogatory, within a reasonable period, summoned to the parties.
    § 1 The issuance of the precatoria will not suspend the criminal investigation.
    § 2 At the end of the set period, the trial may take place, but, at all times, the precatoria, once returned, will be attached to the case file.
    § 3 In the event provided for in the  caput of this article, the hearing of a witness may be carried out by means of videoconferencing or other technological resource for the transmission of sounds and images in real time, allowing the presence of the defender and may even be carried out during the holding of the instruction and judgment hearing. (Included by Law No. 11,900 of 2009 )

Subpoena of dispatch and date to hear witness by precatory

Witness out of the land:  The expression “out of the land” is one more of those “novelties” that goes alongside “irritual proof”, “having a cause” and others. In the difficulty of elaborating a new thesis, names are conceived. Uselessness. In any case, proof outside the land means that the proof is outside the Comarca. 

Failure to notify the issuance of precatoria:  Says  Precedent 155 of the STF : “It is related to the nullity of the criminal process due to lack of subpoena of the issuance of precatoria for questioning a witness” (see  jurisprudence subsequent to the publication of the Precedent ).

Failure to notify the date of the hearing: Precedent 273 of the STJ  prescribes  : “Once the defense has been notified of the issuance of the letter rogatory, it becomes unnecessary to notify the date of the hearing in the deprecated court”. In our view, this understanding violates the principles of ample defense and adversary proceedings. The defender cannot be forced to constantly contact the deprecated court, under the risk of, failing to do so, losing the date of the hearing.

Jurisprudence

The absence of subpoena from the defense regarding the issuance of a precatoria to hear a witness is a cause of relative nullity.

Judgments:

HC 345949/RS, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 06/28/2016, DJE 08/01/2016

HC 340327/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 03/03/2016, DJE 03/10/2016

HC 146374/MT, Rel. Justice Nefi Cordeiro, judged on 03/01/2016, DJE 03/09/2016

AgRg in AREsp 700925/PR, Rel. Minister Rogerio Schietti Cruz, judged on 12/15/2015, DJE 02/02/2016

HC 310014/RJ, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 09/22/2015, DJE 09/29/2015

See also the journals (updated to date of publication):

Jurisprudence Information No. 0479, published on July 1, 2011.

Failure to notify the defender about the date of the hearing of a witness in the court deprecated does not give rise to procedural nullity, provided that the defense has been informed of the issuance of the letter rogatory.

Judgments:

AgRg in HC 365263/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/23/2016, DJE 08/29/2016

HC 331748/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/10/2016, DJE 05/24/2016

HC 336864/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 02/23/2016, DJE 03/04/2016

RHC 066001/CE, Rel. Minister Maria Thereza de Assis Moura, judged on 02/04/2016, DJE 02/18/2016

REsp 1176652/RS, Rel. Minister Nefi Cordeiro, judged on 10/01/2015, DJE 12/04/2015

HC 310014/RJ, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 09/22/2015, DJE 09/29/2015

Know more:

Annotated Precedent no. 273

See also the journals (updated to date of publication):

Jurisprudence Information No. 0073, published on October 6, 2000.

Appointment of ad hoc defender and request for arrested accused:

Appointment of an  ad hoc defender  in the deprecated court: If the accused’s defender does not appear in the deprecated court for the holding of the hearing, an ad hoc  defender must be appointed  , under penalty of nullity of the hearing.

Imprisoned Defendant Request: The arrested accused must be required to attend the hearing. There is jurisprudential understanding in the sense that there is no nullity in the absence of the request. These are the State’s difficulties in promoting the displacement of prisoners, especially when the District where the hearing will take place is far from the prison. As the difficulties of the State cannot harm the defense of the accused, the suggestion is that, since the testimony to be provided is important for the defense (witness who witnessed the alleged fact and who is capable of narrating circumstances of essential importance for the defense), the defense petitions, requesting that the defendant’s claim be determined. This petition must clearly and substantiate the importance of the witness for the defense and, consequently, the presence of the accused complementing the defense with self-defense.

Jurisprudence

The defendant does not have the subjective right to follow, by videoconference system, a witness hearing held, in person, before the Natural Court of the case, due to the absence of legal, regulatory and principled provision. Source: Jurisprudence in theses (STJ).

Judgments:

HC 422490/MS, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 03/13/2018, DJE 03/20/2018

RHC 077580/RN, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/02/2017, DJE 02/10/2017

Trial without witness cross examination

Judgment without the witness being heard: Article 222, paragraph 2,  authorizes   the judgment regardless of the questioning of the witness by precatoria. If this device were valid, in the event that it was determined that all the witnesses of one of the parties would be heard by precatoria, and such diligence was not carried out in time, the judge would be authorized to judge the case. Now, such a hypothesis is absurd, since the judge could judge based only on the testimonies of the witnesses of the other party. It is the same as authorizing the judge to decide without carrying out the instruction. Strictly speaking, given the current stage of criminal procedural science, it is hard to believe that this device is still in force.

Doctrine

Paulo Silas Taporosky:  Reflections on §§ 1 and 2 of Article 222 of the Criminal Procedure Code .  emporiododireito.com.br (…) Before going on to report what happened when the appeal was lodged, I would like to say that it is possible to perceive the danger of strictly complying with the provisions of §§ of Article 222 of the Code of Criminal Procedure. I advance that after the appeal the accused was acquitted. But what if the appeal had not been filed? How would the legal congruence of the thing look? The code determines that, after compliance with the precatoria, these will be added to the file. Everytime. This includes the time after the sentence was handed down. What would it look like if the sentence were final? Being final and unappealable, with the conviction of the defendant, the three precatorias return with the testimonial evidence that, analyzing them together with the others, the conclusion would have been given by the acquittal of the accused. And now, what would be done? (…). 

Jorge Vicente Silva:  New reading of article 222, §§ 1 and 2 of the CPP. PR Tribune . (…) On the other hand, it is not possible to claim that, due to the failure of the Judiciary to comply with the legal deadlines, by its own agents, whether due to the negligence of these authorities, or due to lack of state structure, the accused will be penalized with the curtailment of its defence. And in this regard, it must be taken into account that there are few Judicial Districts that have an agenda to comply with court orders, in thirty, forty-five or sixty days, or even more days, and even counting from their dispatch and remittance. Faced with a lengthy judicial provision in our country, mostly not due to the work or fault of the parties, but rather the structure (or lack) of the Judiciary, it is not possible to claim that, after the deadline set in the precatory, the court can proceed with the case, including passing judgment. 

Videoconferencing in the Federal Court

Videoconferencing in the Federal Court:  Finds regulations in Provision No. 13 of 03/15/2013 of the General Internal Affairs of the Federal Court. The parties and the accused must be previously summoned to attend the hearing. When the listed witness does not reside at the seat of the court in which the case is being processed, he must be questioned by the videoconference system, and it is incumbent upon the court of the case to preside over the act of questioning the witness.

Absence of deadline in the precatory

Paragraph 2 and lack of deadline in the writ:  If there is no deadline for compliance with the writ, the judgment cannot be carried out, under penalty of nullity.

Nullity occurred at the hearing in the deprecated court

Nullity of the hearing in the deprecated court:  While the writ of mandamus is in the deprecated court, the judge who can recognize any nullity of the hearing is the deprecated judge. Once the precatoria is returned to the deposing judge, the latter can recognize nullity, determining the issuance of a new precatoria, if the defect cannot be remedied.

Absence of the defender in the deprecated judgment: An ad hoc  defender must be appointed   to accompany the questioning of the witness, under penalty of nullity.

Jury Plenary

Plenary of the Jury:  If the witness resides in a distant place, the jurisprudence has understood that his presence in the Plenary of Judgment cannot be required, and must be questioned by writ.

Competence to prosecute false testimony

Competence to prosecute false testimony:  It belongs to the deprecated court. In the case of videoconferencing, it belongs to the deprecating judge.

Fim

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