Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 291º CPP – Arrest by warrant and formalities.

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Art. 291. Imprisonment by virtue of a warrant will be understood to have taken place as soon as the executor, making himself known to the defendant, presents him with the warrant and summons him to accompany him.

General considerations

Meaning and purpose of the provision:  Once the arrest warrant has been presented by the State agent (police officer, bailiff) and the arrest order given to the defendant with the name of the agent, it is considered, on that day, time and place, carried out the prison. From then on, the time in prison for all purposes (temporary, preventive, flagrante delicto, by virtue of a conviction sentence) begins to count. It is worth mentioning that the time spent in prison does not count from the date of withdrawal to a prison or even from the Police Station jail, but from that moment when the arrest order is given. It is also from  that moment that the investigation period begins to run, which must end in ten days from the date of arrest ( article 10 ).

The copies that remain with the prisoner and the executor: The copy that remains with the prisoner must contain the day, time and place of the procedure. The purpose of this measure is to enable the prisoner to have proof not only of the day he was arrested (initial date of arrest, from which the period of provisional arrest or resulting from a sentence will be counted), but also so that he knows who and at what time. process determined his arrest. These subsidies may be useful to the lawyer assisting the prisoner, including with regard to the period of temporary imprisonment, which is five days extendable for another five. The device is in line with the constitutional norm by which the prisoner has the right to identify those responsible for the arrest, not just the executor, but also the judge. In the copy that remains with the executor and that will be returned to the clerk to be added to the case file, also there the executor must declare the day, time and place of the diligence, and sign. It will be with this information that the initial date of the arrest will be verified in the records, necessary for the calculation of the terms of fulfillment of the sentence.

Possible offenses when arrested:  From the moment of arrest, the practice of crimes of evasion may occur through violence against the person, described in article  352 of the CP , consisting of “evading or trying to evade the prisoner or the individual subjected to a detention security measure, using violence against the person” and of taking the prisoner, typified in article 353  of the CP , namely, “taking the prisoner, in order to mistreat him, from the power of whoever have in custody or custody”.

Identification of those responsible for the arrest:  In the manifestation of  article 5, item LXIV, of the CF , the prisoner has the right to identify those responsible for his arrest. That is why the expression contained in the provision commented on:  making himself known to the defendant . Register, the prisoner has the right to know not only the identity of who is arresting him, but also the judge who determined the arrest. This is one of the reasons why you should keep a copy of the signed arrest warrant and the names of both the judge and the State agent who carried out the arrest.

Arrest by warrant can only be carried out by a State agent:  Arrest by warrant, unlike arrest in flagrante delicto, which can be carried out by private individuals, can only be carried out by a State agent, which does not prevent private third parties from helping, if necessary, the agent of the State ( article 292 ).


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