Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 259. The impossibility of identifying the accused with his real name or other qualifiers will not delay the criminal action, when physical identity is certain. At any time, during the course of the process, the judgment or the execution of the sentence, if its qualification is discovered, the rectification will be made, by term, in the records, without prejudice to the validity of the preceding acts.

Impossibility of identifying the accused

Physical identification:  When the accused does not have a document or provide elements that allow their nominal identification to be made, the investigation and the process are not impaired. Your physical identification will be made by recording your characteristics, such as color, height, scars and fingerprints (fingerprint identification –  article 6, item VIII ). Under the terms of  article 41 , the complaint shall contain, among other requirements, “the qualification of the accused or clarifications by which he can be identified ”.

Accused impersonating another person:  If the accused impersonates a third person, neither that other person nor the proceedings are harmed. The rectification of the process is sufficient.

criminal identification

When criminal identification is possible:  The subject is regulated by Law  12.037/2009, which in its article 3clarifies that, although an identification document is presented, criminal identification may occur when: I – the document is erased or has evidence of forgery; II – the document presented is insufficient to fully identify the accused; III – the defendant has different identity documents, with conflicting information; IV – criminal identification is essential for police investigations, pursuant to an order by the competent judicial authority, which will decide ex officio or upon representation by the police authority, the Public Ministry or the defense; V – include in police records the use of other names or different qualifications; VI – the state of conservation or the temporal distance or the location of the issue of the presented document make it impossible to fully identify the essential characters.

Law 12.037/2009. Form of criminal identification:  According to  article 5 of Law no. 12.037/2009 , the criminal identification will include the fingerprint and photographic process, which will be attached to the records of the arrest in flagrante delicto, or the police inquiry or other form of investigation. With substantiated judicial authorization, criminal identification may include the collection of biological material to obtain the genetic profile. 

Law 12.037/2009. Guarantees of the criminally identified:  Under the terms of  article 5-A and following of Law 12.037/2009, the data related to the collection of the genetic profile must be stored in a database of genetic profiles, managed by an official unit of criminal expertise. Genetic information contained in genetic profile databases cannot reveal somatic or behavioral traits of individuals, except genetic determination of gender, in accordance with constitutional and international standards on human rights, human genome and genetic data. The data contained in the genetic profile databases will be confidential, with civil, criminal and administrative responsibility for those who allow or promote their use for purposes other than those provided for in this Law or in a court decision. The information obtained from the coincidence of genetic profiles must be included in an expert report signed by a duly qualified official expert. It is prohibited to mention the criminal identification of the accused in background checks or in information not intended for the criminal court, before the final and unappealable sentence is passed. In the case of non-offering of the complaint, or its rejection, or acquittal, the defendant or the defendant, after the definitive archiving of the investigation or the final judgment of the sentence, may request the withdrawal of the photographic identification of the investigation or process, provided that provide evidence of your civil identification. The exclusion of genetic profiles from the databases will occur at the end of the period established by law for the prescription of the crime.

Doctrine

Carlos Eduardo Rios do Amara:  Genetic profile collection as a form of criminal identification .  Anadep.

Eduardo Luiz Santos Cabette:  Investigation of data, information, records and signals. Law 13.344/16 on human trafficking . Legal Scope.

Eduardo Henrique Alferes:  Criminal identification and criminal data . Legal Scope.

Rômulo Moreira:  The new criminal identification law . Crumbs.

Fernando Augusto Fernandes:  DNA registration is not enough without a project to identify weapons and projectiles .  Conjure

Marco Antonio de Barros, Professor at the Faculty of Law – UPM and Professor Marcos Rafael Pereira Piscino:  DNA and its use as evidence in criminal proceedings .  esmal.tjal.jus.br.

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