Art. 226. When there is a need to recognize a person, the procedure will be as follows:
I – the person who has to make the recognition will be invited to describe the person who needs to be recognized;
II – the person whose recognition is sought will be placed, if possible, alongside others who bear some resemblance to him, inviting whoever has to do the recognition to point him out;
III – if there is reason to fear that the person called for recognition, due to intimidation or other influence, will not tell the truth in the face of the person who must be recognized, the authority will arrange for the latter not to see the person;
IV – the act of recognition shall be self-detailed, signed by the authority, by the person called to carry out the recognition and by two witnesses.
Single paragraph. The provisions of no. III of this article shall not apply at the stage of the criminal investigation or in the plenary of the trial.
The practice of recognition in the view of Renato Marcão: The jurist, member of the Public Ministry of the State of São Paulo and professor Renato Marcão, makes interesting and opportune considerations on the way in which the judicial recognition of the accused has been carried out: “In fact, and under the eyes of the law inspector, in court what is invariably practiced is a unique type of sui generis recognition; an informal mockery of recognition; true monster, in which the magistrate, turning to the recognizer and pointing directly at the accused, asks, almost affirming, in a piercing tone of voice: was that one the author of the crime? (sic). And the defendant, after looking sideways, with the bleary eyes of someone who was surprised by such a sudden and unexpected inquiry, quickly replied: yes. It’s almost a “nim”: a mix of yes and no. That “yes”, announced under these circumstances, sometimes expresses much more the desire not to antagonize the judge than the serious commitment to truly identify, with certainty, the unfortunate person who is sitting there. And in this way, without calculating the damage, in this “tavern way”, the visceral connection with the crime is affirmed. And even then: period. This is enough to further state in the statement of reasons for the sentence, solemnly and in highlighted letters, that the victim or witness formally recognized the accused in court. Nothing is more illusory, grotesque and misleading. Such practice, of recognition, has nothing. FRANCESCO CARRARA taught that ‘There is suggestion when, looking for the identification of an object or a person, the object or person that the prosecution wants to identify is presented to the interrogated, without placing it between others. This suggestion could be said to be implicit. Such a form of suggestion is a mixture of actual and verbal suggestion. It is real insofar as, with the presentation of the thing, the idea of identity between the known and the unknown that is sought is suggested to the interrogator. It’s verbal that’s why, with the question, this idea of identity comes to be insinuated’ (Program of the criminal law course, general part, translation by José Luiz V. de A. Franceschini and JR Prestes Barra, São Paulo, Saraiva, 1957, v.II, p.443) . Breaking the typified procedure for collecting this type of evidence disallows the claim that there was recognition in such cases; Technically, there wasn’t. What exists is a simulacrum of recognition. To think otherwise is to shred the dignity of Justice. In conducting the democratic model process, the judge cannot behave like a curious commoner; as a careless receiver of such serious information. He must, above and above all, respect the dignity of everyone and everything that the process touches and involves deeply. He likes it or not; whether or not you like the formalism, unrestricted compliance with the guidelines that inform the procedures normatively outlined by the competent Power is required”. Professor Renato Marcão is entirely right. It is quite true that in some recognitions the formalities of the device under examination are not necessary. It is when authorship is not discussed, or even when it is undeniable, when the proof of it is overwhelming. However, when authorship is denied, and the proof is not categorical, the form established by Article 226 is unavoidable. It can be laborious and sometimes time-consuming, but imperative. when her evidence is overwhelming. However, when authorship is denied, and the proof is not categorical, the form established by Article 226 is unavoidable. It can be laborious and sometimes time-consuming, but imperative. when her evidence is overwhelming. However, when authorship is denied, and the proof is not categorical, the form established by Article 226 is unavoidable. It can be laborious and sometimes time-consuming, but imperative.
Consequence of non-compliance with the formalities of recognition: The formalities of recognition can only be removed when there is no doubt as to authorship. If there is doubt, and if they are not obeyed, although such omission does not result in the nullity of the process, the proof of authorship constant in the inquisitorial phase suffers a decrease in its value. The new recognition carried out in court, whether or not the formalities have been fulfilled, does not have the effect of returning value to what was carried out in the inquisitive stage. It is because the victim, or witness, during the process, has usually already looked at and recognized the accused during the investigation. Thus, in the judicial phase, there is no recognition per se, but only a ratification of recognition, without the same value as a real, formally perfect recognition.
Device applicable to both the investigation and the process: The procedure described in this device must also be observed at the stage of the police investigation. Art. 6 of the CPP: As soon as it becomes aware of the commission of the criminal offense, the police authority shall: (…) VI – carry out the recognition of persons and things and the confrontations.
Recognition alongside others. The lack of just cause: Item II of this device orders that the person who intends to make the recognition be placed, if possible, alongside others. Therefore, if possible, and on most occasions it is, recognition must be carried out with the caution set out in item II. Especially when dealing with a case in which there is only one witness, or the only testimony is that of the victim (which is common in crimes against sexual freedom), or when there is doubt as to the authorship in any case. We believe it is necessary to exhaust the possibilities of placing the defendant with other people, under penalty of nullity. And there will be nullity especially if there is no reasoned decision justifying eventual impossibility. On the subject there is jurisprudence in both senses, that there is, and that there is no nullity. Compliance with the caution in item II is even more important in the investigation. In court, most of the time, the victim or whoever is going to carry out the recognition has already seen the person to be recognized during the investigation phase, where he or she has already recognized him/her. In the investigation phase, it happens differently, the person to be recognized was only seen, most of the time, on the occasion of the commission of the crime. When the observance of the caution mentioned above is not complied with in the investigation, although the nullity of the process cannot be considered, since the defects of the investigation do not affect, as a general rule, the procedural relationship, the evidentiary value of the recognition is restricted. The nullities of the process have, among other functions, pedagogical and preventive functions. When the court annuls all the work carried out by the judge of first instance, there is pedagogical and preventive content in that decision. As long as the Judiciary persists in considering the recognition made without observing item II of the present provision (placing the person to be recognized alongside other people), the police will persist in carrying out recognitions without this essential formality (and only in very exceptional cases can justification be conceived reasonable and credible to not effect the recognition in the legal form when the authorship is doubtful). In crimes in which the only witness is the victim, the recognition carried out without observing this item does not provide just cause for criminal action, and even less to provide evidentiary support for the condemnatory decree. The highest percentage of convicted innocent people serving time in penal establishments results from convictions based on a single statement, that of the victim. It is up to the judges to reject the complaint when it is supported by this very serious irregularity. And note: once the irregularity has been committed by the police authority, this is one of those failures that redoing will not produce just cause, as the victim has already irregularly recognized the investigated person. Placing the investigated person, after being recognized, alongside other people does not confer any probative value to the new recognition. Not only do procedural nullities constitute serious failures, there are investigation irregularities that produce the same effect as procedural nullities: no effect. once recognized, along with other people, it does not confer any probative value to the new recognition. Not only do procedural nullities constitute serious failures, there are investigation irregularities that produce the same effect as procedural nullities: no effect. once recognized, along with other people, it does not confer any probative value to the new recognition. Not only do procedural nullities constitute serious failures, there are investigation irregularities that produce the same effect as procedural nullities: no effect.
Participation of the parties: The lawyer and the member of the MP cannot formulate inquiries. The participation of both parties is only supervisory, so they are authorized to make observations they deem necessary to the judge.
Recognition in the case of arrest in flagrante delicto: In the event of arrest in flagrante delicto, the doctrine has understood that the precautions of article 226 may be waived. It doesn’t seem like it’s always like that. In the act, the driver is not necessarily the one who carried out the arrest. The prisoner may have been handed over to the driver. The driver may not have witnessed the crime. The victim does not necessarily need to accompany the prisoner’s driving. He may, for example, have needed urgent medical attention as a result of committing the offence. In that case, it will be heard later and, then, the recognition must be carried out in the manner recommended by this legal provision. It should be noted that, even according to the wording of article 304, witnesses, if any, may not have accompanied the driver. They may, for example, have accompanied the victim to the hospital. They will be asked later. Also here, the recognition must be done in accordance with article 226 and its items. The precautions of this device can only be waived in relation to the driver/victim and the witnesses who accompanied the driving. In these hypotheses, yes, there is no reason to justify the application of article 226, insofar as the driver/victim and witnesses were in direct and visual contact with the agent from the moment of the criminal act.
Photo recognition: Its value should be assessed with caution. It has nowhere near the same value as personal recognition, and for that reason it can only be resorted to in cases where personal recognition is impossible. Even the photographic recognition must be carried out with the measures of the items of this article 226. Photographs of other people are used.
Renato Marcão: Recognition of a Person in Court . Legal Content.
Aury Lopes Jr. and Pedro Zucchetti Filho: The right of the accused not to attend the personal recognition . Conjure
Irregularities related to the personal recognition of the accused do not give rise to nullity, since the formalities provided for in article 226 of the CPP are mere legal recommendations. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).
AgRg no AgRg no AREsp 728455/SC, Rel. Justice Sebastião Reis Júnior, judged on 06/28/2016, DJE 08/03/2016
HC 346058/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 06/21/2016, DJE 06/30/2016
AgRg in REsp 1434538/AC, Rel. Minister Felix Fischer, Fifth Panel, judged on 06/02/2016, DJE 06/15/2016
AgRg in AREsp 837171/MA, Rel. Minister Rogerio Schietti Cruz, judged on 04/12/2016, DJE 04/20/2016
AgRg in AREsp 642866/SC, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 12/15/2015, DJE 02/01/2016
HC 198846/DF, Rel. Minister Nefi Cordeiro, judged on 10/27/2015, DJE 11/16/2015
The photographic recognition of the defendant, when ratified in court, under the guarantee of the contradictory and ample defense, can serve as a suitable means of evidence to substantiate the conviction. Source: Jurisprudence in theses (STJ).
HC 427051/SC, Rel. Justice Felix Fischer, Fifth Panel, judged on 04/05/2018, DJE 04/10/2018
AgRg in AREsp 683840/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 03/15/2018, DJE 03/23/2018
AgRg in AREsp 1204990/MG, Rel. Minister Sebastião Reis Júnior, judged on 03/01/2018, DJE 03/12/2018
HC 408857/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 02/08/2018, DJE 02/16/2018
AgInt no AREsp 1000882/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 11/10/2016, DJE 11/24/2016
HC 224831/MG, Rel. Minister Rogerio Schietti Cruz, judged on 06/28/2016, DJE 08/01/2016
Recognition of the person and indispensable formalities: The recognition of the person, in person or by photograph, carried out at the stage of the police investigation, is only able to identify the defendant and establish the criminal authorship, when the formalities provided for in art. 226 of the Code of Criminal Procedure and when corroborated by other evidence collected in the judicial phase, under the scrutiny of the contradictory and ample defense ( HC 598.886-SC , Reporting Min. Rogerio Schietti Cruz, Sixth Panel, unanimously, judged on 27/ 10/2020, DJe 12/18/2020).