Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 265. The defender may not abandon the process except for compelling reasons, previously communicated to the judge, under penalty of a fine of 10 (ten) to 100 (one hundred) minimum wages, without prejudice to other applicable sanctions. (Wording provided by Law No. 11,719 of 2008).
§ 1 The hearing may be postponed if, for justifiable reasons, the defender cannot attend. (Included by Law No. 11,719 of 2008).
§ 2 It is up to the defender to prove the impediment until the opening of the hearing. Failure to do so, the judge will not determine the postponement of any act of the process, and must appoint a substitute defender, even if provisionally or only for the purpose of the act. (Included by Law No. 11,719 of 2008).

Defender’s waiver

Constituted defender who resigns from office:  See note to  Article 263 .

Resignation of the appointed defender:  The appointed defender does not need to present to the judge any reason to resign from the mandate. The need for justification of the waiver concerns the dative defender. But the constituted defender cannot simply abandon the cause, without prior waiver of powers communicated to the judge, under penalty of responding to an administrative proceeding before the OAB. Article  5, paragraph 3, of the Statute of the OAB  (Law n. 8.906/94) establishes that the lawyer who resigns from the mandate will continue, during the ten days following the notice of resignation, to represent the principal, unless he is replaced before the end of that period. That same Statute, in its  article 34, item XI, provides that it constitutes a disciplinary offense to abandon the cause without just cause or before ten days have elapsed from the notice of resignation.

Fine and violation of the principle of independence of the defender:  The possibility of imposing a fine by the judge on the defender directly violates the principle of his independence in criminal proceedings. It is true that the defender must, as a general rule, comply with judicial determinations, but this does not mean that there is any relationship of subordination between the defender and the judge. The fine is inapplicable. If the defender abandons the process, he must account to the body to which he is linked, to the OAB ( article 34, item XI, of the Statute of the OAB – Law 8.906/94), or to the Public Defender. Therefore, the appropriate measure on the part of the judge, in the face of the abandonment of the defense, is limited to determining that it be officiated at these Bodies. In addition, under the terms established by this provision 265, the fine would be applied without any previous contradictory procedure and without observing full defense, which is unsustainable from the point of view of sanctioning administrative law (the norm inserted in the CPP that provides for the fine is a rule of administrative law).

Absence of defender

Absence of the lawyer at the Jury Court meeting: According to  article 456 of the CPP, the non-appearance of the defender, without legitimate excuse, and if another lawyer is not appointed by the defendant, will be immediately communicated to the president of the section of the Order of Lawyers of Brazil, with the date designated for the new session. In case the lawyer does not present a legitimate excuse, the trial will be postponed only once, and the accused must be judged when called again and, in this case, the judge will summon the Public Defender’s Office for the new trial, which will be postponed to the first free day , subject to a minimum period of ten days. In summary, if the lawyer is absent without justification, the trial will be postponed only this time, and the judge will notify the Public Defender’s Office for the new trial, observing the minimum period of ten days.

Defender Providing Justification:  The justification must be presented prior to the hearing. Presented, the defender has the right to adjournment, not constituting this, the adjournment, mere faculty of the judge. 

Defender prevented from presenting the justification before the hearing:  It is to be considered that the justification cannot always be presented before the hearing, as, for example, in the case of a traffic accident involving the defender on the way to the Forum. In this case, the hearing, if held, must be annulled and another one designated. After all, there is a fair reason for non-appearance, and the accused cannot have his right to full defense impaired.

Defender who does not provide justification:  Pursuant to paragraph 2, the judge does not postpone the hearing. He appoints  ad hoc counsel  to participate in the hearing. However, if the issues debated in the process are endowed with complexity, so as not to prejudice the ample defense, the Public Prosecutors Eugênio Pacelli and Douglas Fischer, in comments to the present device, rightly maintain that the judge should postpone the act, appointing a defender  ad hocfor attendance on the date then designated, so that the defender then designated can have contact with the matter discussed. And, on that occasion, nothing will prevent the participation of the defender constituted by the accused (Pacelli, Eugênio and Fischer, Douglas – Comments on the Criminal Procedure Code and its Jurisprudence, Editora Atlas, 4th ed., 2012).

Jurisprudence

The designation of a dative or ad hoc lawyer for a hearing is regular when the public defender is unable to participate: The  appointment of a dative or ad hoc lawyer for a hearing in which the public defender is unable to participate does not violate the principle of the natural public defender ( HC 123.494 , rel. Min. Teori Zavascki, judgment on 16-2-2016, DJE of 2-3-2016  – Bulletin 814, Second Panel).

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