Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 289º CPP – Imprisonment outside the jurisdiction.

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Art. 289. When the accused is in national territory, outside the jurisdiction of the prosecuting judge, his arrest will be deprecated, and the entire content of the warrant must be included in the precatoria. (Wording provided by Law No. 12,403 of 2011).
§ 1 In the event of urgency, the judge may request the arrest by any means of communication, which must include the reason for the arrest, as well as the amount of the bail if arbitrated. (Included by Law No. 12,403 of 2011).
§ 2 The authority to which the request is made will take the necessary precautions to verify the authenticity of the communication. (Included by Law No. 12,403 of 2011).
§ 3 The prosecuting judge must provide for the removal of the prisoner within a maximum period of 30 (thirty) days, counted from the effectiveness of the measure. (Included by Law No. 12,403 of 2011).

Accused who is in another jurisdiction

Imprisonment outside the jurisdiction:  When the accused is outside the jurisdiction of the prosecuting judge, his arrest will be forwarded to the judge with jurisdiction where he is, residing or fleeing. To deprecate means  to ask ,  request ,  postulate . The deprecated judge must launch an order determining compliance with the letter rogatory, which can be summarized as the command  comply with it , without the need for any justification.

Contents and copies of the precatory letter:  The request is made through a precatory letter. The letter must contain the entire content of the warrant, or, alternatively, copies of the warrant. Four copies (either of the letter or the warrant) will be required. One copy to remain in the records, another to stay with the prison executor, where once the receipt has been issued by the prisoner, it will be returned to the records, a third for the prisoner and a fourth will be delivered to the prison administrator (article 288 ) . The copies are not simple copies of the original, since all of them must be signed by the deposing judge. Pursuant to  article 354 , the precatoria will also indicate: I – the judge deprecated and the judge deprecating; II – the seat of jurisdiction of one and the other.

Request in case of urgency : In case of urgency, instead of issuing a precatory, which takes time, the arrest may be requested by any means of communication (fax, phone call, email, etc.). With the adoption of the virtual process, the precatoria can be issued electronically and with the certified digital signature of the deposing judge. Law  11.419/2006, which provides for the computerization of the judicial process, authorizes the communication of procedural acts via the internet, regulates the electronic signature and its digital certification (articles 1 and 2). The authority to which the request is made will take the necessary precautions to verify the authenticity of the communication. These precautions will be unnecessary when using the electronic process of certified digital communication between magistrates for the purpose of issuing and receiving precatoria.

Exemption from precatoria and requisition:  As provided for in  article 287 , which makes an exception in paragraph 1 of article 289-A, if the arrest warrant is registered in the database maintained by the National Council of Justice, and the arrest is not bailable ( article 287 , which makes an exception in  paragraph 1 of article 289-A ), any police officer may carry out the arrest, even if outside the territorial jurisdiction of the judge who issued it. In this way, for arrest, a simple communication (phone call, fax, email, etc.) from the court of any jurisdiction to any Police Station is sufficient. It will be up to the police to consult the database. Thus, the precatoria will be reserved for bailable crimes. 

Removal of the prisoner from the other district:  Once the detention is carried out, the deprecated judge must arrange for the detainee’s removal from the jurisdiction of the deprecating judge within a maximum period of 30 days, counted from the effectiveness of the measure. This deadline is often exceeded. The fact is that the removal does not depend only on the court order, but also on the Executive, with the participation of the police or penitentiary administration, which does not always have the means for transport and escort. In principle, this is an administrative term and therefore does not generate illegal constraint.

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