Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 260. If the accused does not comply with the subpoena for interrogation, recognition or any other act that, without him, cannot be carried out, the authority may have him brought before him.
Single paragraph. The warrant will contain, in addition to the driving order, the requirements mentioned in  Article 352 , as applicable.

Driving the accused to court

Driving the accused to the court hearing:  It is not essential for the accused to be present for the interrogation, as he has the right to remain silent ( article 5, item LXIII, of the CF ). There’s no point in demanding his presence if you can keep quiet. In this way, coercive conduct for the purposes of judicial interrogation is not appropriate. On the other hand, when the presence of the accused is necessary for the purposes of recognition by witnesses, or confrontation, or simulated reproduction of the crime, or when he is released on bail (article 319, item VIII), if, notified, he does not appear, he may be coercively conducted.

Accused not appearing. Pre-trial detention:  Failure of the accused to appear at an act in which his presence is required does not constitute grounds, in itself, for a decree of pre-trial detention. A restraining order must be issued. Only in the case of bailed defendant who does not appear can the judge (faculty) decree the preventive measure ( article 282, item II, paragraph 4 ). But it would be an exceptional measure, as breach of precautionary measure under  Article 319 does not necessarily matter in prison. In this case, the judge “may replace the measure, impose another in addition, or, as a last resort, decree the preventive provision” ( article 282, paragraph 4 ). Therefore, under the terms of this provision, the magistrate “may impose another in addition , that is, keep the same measure by imposing one more. Thus, if the accused fails to comply with one of the obligations of the institution of the guarantee “failing to appear at the act of the process   ( article 341, item I ), the judge can maintain this obligation (even if the guarantee is broken) and cumulate with another or others without decreeing the prison.

Coercive driving of the suspect to the Police Station

Police chief and coercive driving:  Coercive driving is still a form of imprisonment, albeit for a short period of time. In view of this, it can only be determined  by written and substantiated order of the competent judicial authority  ( article 5, item LXI, of the CF ). Requiring the presence of an investigated person for the investigation act to which he must be present (qualification, identification, recognition by witnesses), the police chief must issue a notification to the investigated person, designating a day and time for his appearance. If there is no response, you must request the judge to issue a warrant for coercive conduction. If the conduction is for interrogation purposes, it is prohibited by the decision handed down in the Arguments of Breach of Fundamental Precept nos. 395 and 444 .

Coercive conduct in ADPFs 395 and 444:  Arguments  of Non-compliance with Fundamental Precept nos. 395 and 444were upheld to pronounce “the non-reception of the expression ‘for interrogation’, contained in art. 260 of the CPP, and declare the incompatibility with the Federal Constitution of the coercive conduct of investigated or defendants for interrogation, under penalty of disciplinary, civil and criminal liability of the agent or authority and the illegality of the evidence obtained, without prejudice to the civil liability of the State. The Court also highlighted that this decision does not invalidate interrogations carried out up to the date of this judgment, even if those questioned were coercively led to such an act”. On the occasion of the granting of the injunction, Minister Gilmar Mendes, through a vote to which the majority current adhered, maintained that “freedom of movement is violated by coercive driving. caput ), to be restricted only under the observance of due legal process (art. 5, LIV), and, specifically, when establishing strict rules on imprisonment (art. 5, LXI, LXV, LXVI, LXVII). The Charter also emphasizes freedom of movement by enshrining the special action of  habeas corpus as a remedy against illegal restrictions and threats (art. 5, LXVIII). Coercive driving represents an absolute, albeit temporary, suppression of freedom of movement. The investigated or defendant is captured and taken into custody at the place of questioning. There is a clear interference with freedom of movement, even if for a brief period. (…) As for the presumption of non-culpability (art. 5, LVII, of the CF), its relevant aspect to the case is the prohibition of treating people not convicted as guilty. Coercive conduct consists of capturing the investigated or accused person and taking him under police custody to the presence of the authority, to be subjected to interrogation. Temporary restriction of freedom by driving in custody by police forces on public roads is not treatment that would normally apply to innocent people. The investigated conducted is clearly treated as guilty. (…) During the investigation, there is no rule that determines submission to interrogation. On the contrary, as already stated, the right to silence is consecrated to the investigated. Therein lies the main fallacy underlying coercive conduct: the allegation that it would be a minus  in relation to preventive detention for convenience of criminal instruction. Coercive conduct is, in fact, less burdensome than preventive detention. The point, however, is that conducting interrogation is not a legitimate purpose for pre-trial detention. The consecration of the right to silence prevents preventive detention for interrogation, insofar as the accused is not obliged to speak. Therefore, coercive conduction for interrogation represents a restriction of freedom of movement and the presumption of non-culpability, to oblige the presence in an act to which the investigated person is not obliged to attend. Hence its incompatibility with the Federal Constitution. (…) I reiterate that, insofar as there is no legal obligation to attend the interrogation, there is no possibility of forcing attendance”.

Broad examination of the decision issued in ADPFs 395 and 444:  Currently (2018) coercive conducts for the purpose of interrogating investigated and accused persons are prohibited (the granting of the court order itself is prohibited). This is what can be concluded from reading the decision issued in ADPFs 395 and 444. According to the provisions of  article 10, paragraph 3 of Law no. 9,882/1999, the Claim of Non-compliance with a Fundamental Precept being upheld, the decision will be effective against all and binding effect in relation to the other organs of the Public Power. It seems to us that, from a political point of view, the decision was the right one, since it was launched in a context in which excesses were taking place, which are described in the courageous vote of Minister Gilmar Mendes. From a technical point of view, some considerations are necessary. Assumption for opening an inquiry is news of a crime with some evidence that it actually occurred. There is not necessarily a suspect. There may not be, there may be one, there may be several. You have to listen to people. Among these, some are suspects/witnesses, that is, the delegate does not know for sure whether the person to be heard is a witness, or if it is the criminal himself. Of all those involved, everyone can be in this situation. In an investigation, the facts are not always clear. By the way, they are investigated to be clarified, cleared. The suspects, to stop being suspects and become indicted, or unsuspected. The witnesses, to confirm themselves as witnesses, or not. The victims, to confirm themselves as victims, but sometimes everything changes, and they become suspects, even indicted. The investigation starts uncertainly. Need freedom. You can’t put handcuffs on the wrong person, the police chief. The police chief, in order to carry out his investigative work, needs to bring the people involved into the police station, especially those he considers suspicious. Even at the police station, the initial suspicion may fall to the ground. The suspect can surprise, becoming a valuable witness. The right of the police authority to investigate cannot be hampered, stuck, or made impossible. Can the suspect shut up? Yes you can. So let’s go by parts. There is an inquiry. There is still no indictment. There’s one, or two, or three suspects. The delegate wants to hear one of them. He must obligatorily send notice for him to appear to give testimony. Between the period of receipt of the notification and the date of attendance, there must be ten days (analogous to the article 396 ), term that we understand correct. The notification must contain a warning that non-attendance may result in coercive conduct, a warning that we believe is fair and that gives the person notified the opportunity to seek a lawyer, if he so wishes, to even present himself spontaneously. Failure to appear on the designated day and time, the police authority must request a coercive driving order from the judge, since driving represents a restriction of freedom, albeit brief, and, therefore, can only be determined “by written and substantiated order of a judicial authority authority   ( article 5, item LXI, of CF). The press will not be able to be informed of the diligence. If the news leaks, the diligence should be canceled, because, as Minister Gilmar Mendes pointed out in his brilliant vote on ADPFs 395 and 444, this type of publicity “treats people who have not been convicted as guilty. Coercive conduct consists of capturing the investigated or accused person and taking him under police custody to the presence of the authority, to be subjected to interrogation. Temporary restriction of freedom by driving in custody by police forces on public roads are not treatments that can normally be applied to innocent people. The investigated person is clearly treated as guilty”. When the suspect is present before the authority, he may or may not remain silent. While, in the judicial phase, an eminently defensive phase, we maintain that the right of the accused to remain silent implies his release from appearing for interrogation, in the inquisitive phase our thinking is different. Anyone who is heard as being investigated has the right to remain silent, which does not exclude the right of the police authority to interrogate. They are independent rights. One does not exclude the other at the inquiry stage. In court, interrogation is eminently defense. In the inquiry, it is investigation. The right to interrogate is broader than the right to listen to the investigated person. The right to question includes the authority’s right to have the suspect in its presence. See it in person. Know him. Watch his reactions. It should be noted that the suspect may not have responded to the notification to appear for simple convenience, for not wanting to get involved with the incident being investigated and, arriving at the Police Station, provide a series of clarifications, proving to be an extremely useful witness. Shut up. In this case, the police authority, based on this reaction, can outline its new investigation strategies. He can remain silent, but that doesn’t stop the authority from exposing the whole situation, the pros and cons of keeping silent, the consequences, and, who knows, making him change his mind. He can remain silent, but the authority, which has his descriptions, given by witnesses who gave testimony before, can verify personally if he was the author of the crime. So, the right to interrogate, the act of interrogating is not limited to asking questions, inquiring. No. It is a complex act. He does not just look for the “speech”, the “narrative” of the suspect. The right of this close contact between the police officer and the investigated person cannot be withdrawn. This approximation is the nature of the investigation. By the way, as the chief of police is going to present the judge with an examination of the investigated person’s mental health, under the terms of the article 149, paragraph 1 , without allowing him, the police chief, to even say “good morning” to the investigated person? In investigation, there is no way to distance investigator from investigated. It’s inquisition. As in an accusatory process, there is no way to bring the accused closer to the judge, it ceases to be a process. 

Specific examination of the grounds for the decision issued in ADPFs 395 and 444:  The grounds for the decision issued in ADPFs 395 and 444 were basically four: 1st – freedom of movement is violated by coercive driving; 2nd – Driving under custody by police forces on public roads is not a treatment that normally can be applied to innocent people. The investigated person is clearly treated as guilty, which violates the presumption of innocence; 3rd – coercive conduction is unnecessary, since the investigated person has the right to remain silent; 4th – carrying out the interrogation is not a legitimate purpose for preventive detention, which would justify coercive conduct, since it is a  minus in relation to preventive detention for convenience of criminal instruction. It does not seem to us that freedom of movement is violated if there is a court order issued based on a reasoned decision. Driving in custody cannot be done ostensibly by police agents, under penalty of committing the crime of abuse of authority ( Law n. 13.869/2019). The investigated person’s right to remain silent does not extend to the police authority, that is, the delegate cannot be silenced, whoever can interrogate can know the accused, make law proposals to the suspect, try to talk, expose the situation, try to get to know the suspect, observe their reactions, including psychic ones, all as explained in the previous title. Interrogation, evidently, is not a legitimate purpose for the preventive measure, nor does it concern the use of the criminal judge’s general power of caution (this power exists, register); the interrogation of the accused does indeed concern the legitimate right of the police authority to carry it out. It is simply an exercise of the delegate’s public administrative right, which, as we have seen, does not violate the right of the accused to remain silent during its performance. This is our interpretation when the rule of law is present, not for periods of arbitrariness. In exceptional periods, such as the one described in ADPFs 395 and 444, the interpretations we make are of no value. Absolutely correct understanding of the STF. The law adapts to the circumstances.

Coercive conduction of the witness and expert:  After notified, not appearing, the coercive conduction of the witness and expert is not prevented. Depends on court order authorization.

Doctrine

Antônio Sérgio A. de Moraes Pitombo:  Sets of rights are disregarded in coercive conducts . Crumbs. A succinct and objective overview by Dr. Antônio Pitombo on the illegality of this type of driving, and for that very reason, quite enlightening. Doctrine that creates a way to prevent the exercise of full defense in criminal proceedings: judicially determine the interrogation of the suspect or investigated person, who must be coercively conducted to the headquarters of the Federal Police Department, to be questioned about facts, object of police inquiry unknown to the interrogated and his defense. Two justifications can be heard for this illegal practice of criminal investigation: (i) this forced interrogation avoids temporary imprisonment (Article 1 of Law 7960/89); and (ii) it is a new model of criminal prosecution, which has already allowed the rapid hearing of hundreds of people within the scope of the “Lava Jato” operation.+

Guilherme Nucci:  Coercive conduct and the judgment of the Federal Supreme Court: the Manichaean confrontation . William Nucci.

José Roberto Batochio:  Gilmar Mendes prohibited the State from promoting “lightning kidnapping” . Conjure

José Luis Oliveira Lima:  Some PF efforts look like American movies olimaadvogados.adv.br.

Leonardo Isaac Yarochewsky:  Prohibition of coercive measures is a victory for the rule of law . Conjure .

Ruchester Marreiros Barbosa Coercive conduct may be necessary for the effectiveness of the investigation . Conjure 

Técio Lins e Silva:  Oral Support at the STF. ADPF’s 395 and 444. Coercive Conduct – video.

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