Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 3-C CPP – Jurisdiction of the guarantee judge

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Art. 3º-C. The jurisdiction of the guarantee judge covers all criminal offenses, except those of lesser offensive potential, and ceases upon receipt of the complaint or complaint pursuant to art. 399 of this Code. (Included by Law No. 13,964, of 2019)
    § 1 Once the complaint or complaint has been received, the pending issues will be decided by the investigating judge. (Included by Law No. 13,964, of 2019)
    § 2 The decisions handed down by the guarantees judge do not bind the investigation and judgment judge, who, after receiving the complaint or complaint, must re-examine the need for the precautionary measures in progress, within the period maximum of 10 (ten) days. (Included by Law No. 13,964, of 2019)
    § 3 The records that make up the matters under the competence of the judge of guarantees will be safeguarded in the secretariat of that court, available to the Public Prosecutor’s Office and the defense, and will not be attached to the case records sent to the investigating and judgment judge, with the exception of documents relating to unrepeatable evidence, measures for obtaining evidence or anticipating evidence, which must be sent to be attached separately. (Included by Law No. 13,964, of 2019)
    § 4 The parties are assured wide access to the records safeguarded at the secretariat of the court of guarantees. (Included by Law No. 13,964, of 2019)

Articles 3-A, 3-B, 3-C, 3-D, 3-E and 3-F suspended sine die by injunction granted in ADIs 6,298, 6,299, 6,300 by Justice Luiz Fux.

Still on the jurisdiction of the guarantee judge

The jurisdiction of the guarantee judge ceases upon receipt of the complaint: There is a material error in item XIV when referring to article 399 . It is understood that the mention is to article 396 . See our comments in the subtitle Receipt of the complaint or complaint under the title Jurisdiction and duties of the guarantee judge , in a comment on Article 3-B, item XIV.

Jurisdiction does not cover the process of criminal offenses of lesser offensive potential: The courts are regulated by Law No. criminal offenses and crimes for which the law imposes a maximum penalty of not more than two years, with or without a fine. It should be noted that, in the case of infractions of lesser offensive potential, the jurisdiction of the special courts is excluded when the sum of the penalties exceeds two years ( RHC 046646/SP, Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 07/04 /2016, DJE 04/15/2016 ). Law No. _10,259, of July 12, 2001 , provides for the institution of special civil and criminal courts within the scope of Federal Justice.

Does not apply to proceedings aimed at curbing domestic and family violence: The injunction granted by Minister Dias Toffoli was agreed when, in ADI No. 6,300 , he suspended the application of the judge’s system of guarantees in cases of domestic or family violence. According to article 5 of Law no. 11.340/2006 , configures domestic and family violence against women, among other actions, any action or omission that causes psychological suffering. Psychological violence is defined in item II of article 7of this law and covers any conduct that causes emotional damage and decreases self-esteem, or that harms and disturbs the full development, or that aims to degrade or control actions, behaviors, beliefs and decisions, through threat, embarrassment, humiliation, manipulation, isolation, surveillance constant persecution, insult, blackmail, violation of their privacy, ridicule, exploitation and limitation of the right to come and go, or any other means that causes damage to their psychological health and self-determination. There is also, in item IV of the same device, the description of patrimonial violence understood as any conduct that constitutes retention, subtraction, partial or total destruction of objects, work instruments, personal documents, goods, values ​​and rights or economic resources, including those intended to satisfy needs. Not always, better saying, many times, there is no crime and, even so, absent the criminal characteristic, the jurisdiction is activated by means of Law n. 11,340/2006. The main objective of this legal text is the prevention of crime. In cases of domestic and family violence, it is up to the police authority to send, within 48 (forty-eight) hours, a separate file to the judge with the victim’s request, for the granting of urgent protective measures. It is not convenient to divide the jurisdictional functions in this type of procedure. One of the reasons, despite the imposition of urgent protective measures (genuine precautionary measures), is that there may not be an investigating judge, since there may be no crime and, consequently, no complaint will be offered.judge of the land (borrowing this expression that is used for witnesses who are heard by precatoria in another district than that of the prosecuting judge), configuring an impropriety insofar as, in cases involving family, it is essential that the judge is close to the happenings. Not only to resolve urgent matters – and urgency is the rule in this matter – but also to question the people involved. The theme is specialized and requires special attention given to the numbers referring to domestic violence, which is why the legislator encouraged the creation of Courts of Domestic and Family Violence against Women (article 14 of Law n. 11.340/2006 ). The judge’s non-applicability of guarantees to cases of domestic violence is definitively resolved with the provisions ofarticle 13 of Law no. 11.340/2006 , when it stipulates that the rules of the Codes of Criminal Procedure and Civil Procedure and specific legislation will apply to the process, judgment and execution of civil and criminal cases arising from the practice of domestic and family violence against women. relating to children, adolescents and the elderly who do not conflict with the provisions of this Law. The system of this special law, as seen, conflicts with the judge of guarantees.

Warrant Judge and Jury Court:From time to time, nations descend into darkness. The political environment provokes reflexes in the interpretation of the laws, which becomes popularized, popularized, moralized immorally. Screams of virtual crowds, backed by repeating machines, parrots bytes, seduce and dazzle interpreters. Umberto Eco, Italian writer and philosopher, commented that “the internet is still a wild and dangerous world. Social media gave the right to speak to legions of imbeciles who, previously, spoke only at the bar, after a glass of wine, without causing harm to the community. Excess information causes amnesia. Too much information is bad. When we don’t remember what we’ve learned, we become like animals. To know is to cut, to select”. The literality of the Code of Criminal Procedure matters little, corroborated by the constitutional principle, Decisions fluctuate and take turns when discussing the moment to start execution, whether before or after the final decision. There has been discussion, for some time now (2020), about the possibility of the condemned by the Jury Court being or not subject to provisional execution. What would be the foundation? It is said that it is the sovereignty of the jury’s decision. It should be noted that theArticle 5 of the CF is positioned in Title II , which deals with Fundamental Rights and Guarantees . The caput of article 5, to which item XXXVIII is linked , which deals with the sovereignty of verdicts, says that “ Brazilians and foreigners residing in the country are guaranteed the inviolability of the right to life, liberty, equality, security and property, under the following terms: (…)”. Now, the deduction arrived at is that the competence of the jury and the sovereignty of its decisions were constitutionally established in favor of the accused, never against him and in favor of the jurors. The sovereignty of the verdicts is foreseen in the title that deals with fundamental rights and guarantees. It must therefore be interpreted in favor of the accused. The sovereignty of the verdict was instituted in favor of the accused, not in his disfavor, or it would not be an individual guarantee. It must be examined from the perspective of the protection of the accused. There is another argument that definitively rules out opinions of a moral nature: if the person convicted of homicide must serve the sentence in advance, why shouldn’t the same treatment be given to the rapist, the murderer, the kidnapper? Yet, the consideration that the vast majority of cases of homicide that pass through the Jury’s Court are not qualified (by means of payment, base motive, use of poison, fire, ambush, etc.), but committed for reasons of passion, where, very often , the effects of alcohol are present: skirmishes between drunks or enemies who have been at loggerheads for some time, phallic rivalries and the like. The majority of those convicted are first-time offenders. No dangerousness. Homicide was an accident in their lives. The homicidal tendency, the homicidal personality, the serial killer are not the rule. On the contrary, they are exceptions. One more necessary observation: the meaning of the expression “guarantee of public order” (one of the requirements for the imposition of preventive measures) seems to have been frozen, imprisoned by some writers. Ensuring public order does not only symbolize the possibility of “the accused committing a crime again”. Warranty is preservation. Order is tranquillity, serenity, security. There are those who want to prohibit giving the symbol the completeness of its meaning. The assertion that the seriousness of the offense alone does not constitute grounds for pre-trial detention is correct. On the other hand, it is a misunderstanding to say that the seriousness of the offense associated with proof of the existence of the crime and strong evidence of authorship does not constitute a reason for preventive action. The seriousness of the crime, in addition to being able to reveal dangerousness, when followed by late punishment, causes damage to public order. The beaten order, the insecurity of society, represent a well-founded fear of danger and confirm the concrete existence of contemporary facts. a murderer, a rapist, one who used torture to kill, a kidnapper who hurt or killed his victim, in these hypotheses, without any uncertainty, given proof of a crime and strong evidence of authorship, preventive detention is appropriate. Any time. Before or after the 1st instance decision. Murderers are not all in the same boat. It is necessary to examine the circumstances of the murder and of the accused. The preventive one solves with effectiveness and justice the problem of the freedom after the decision of the jury. To legitimize the provisional execution in the case of conviction by the jurors based on the sovereignty of the jury is to violate the law and the logic of the system. appropriate is preventive detention. Any time. Before or after the 1st instance decision. Murderers are not all in the same boat. It is necessary to examine the circumstances of the murder and of the accused. The preventive one solves with effectiveness and justice the problem of the freedom after the decision of the jury. To legitimize the provisional execution in the case of conviction by the jurors based on the sovereignty of the jury is to violate the law and the logic of the system. appropriate is preventive detention. Any time. Before or after the 1st instance decision. Murderers are not all in the same boat. It is necessary to examine the circumstances of the murder and of the accused. The preventive one solves with effectiveness and justice the problem of the freedom after the decision of the jury. To legitimize the provisional execution in the case of conviction by the jurors based on the sovereignty of the jury is to violate the law and the logic of the system.

Non-binding of the guarantees judge’s decisions

It’s just one judgment. Revocation and annulment of acts by the guarantee judge:Any decision by the guarantees judge – whether on a precautionary measure, invasive measure, receipt of a complaint – does not bind the magistrate who succeeds him: the investigating judge. At any time, the investigating judge may review applied precautionary measures, including preventive or temporary arrests. There are two functions. They are exercised by different judges. But the judgment, the instance, is one. Instances are recursive hierarchical degrees. There is no appeal against the judge’s act of guarantees to the investigating judge. The instance of both magistrates is the same. When the investigating judge revokes or annuls a decision by the guarantee judge, it is as if he were reversing his own decision. It is that the judgment and the instance are one. There is no simultaneous performance of these magistrates. Upon receipt of the complaint, the investigating judge assumes jurisdiction. There is no impediment for the investigating judge to go back and revoke, or annul, the receipt of the complaint made by the guarantees judge. Once the complaint is received, any pending matter is the responsibility of the investigating judge. About the topic, see titleJudicial measures in the face of ineptitude in the subtitle Recognition of the ineptitude of the complaint after being received in the title Judicial measures in the face of ineptitude in comments to article 395 .

Review of ongoing precautionary measures:There is a need to review the ongoing precautionary measures within a maximum period of 10 (ten) days, says paragraph 2. This device needs to be interpreted, because in its literality it violates the accusatory principle. The judge should not be allowed to delve into the test alone. If there is no request for a substantiated reexamination of the defense, the judge – before entering into the examination of the evidence of the preventive requirements and deciding – must open a period for the parties to manifest themselves, first to the prosecutor and then to the defense. He must decide with contradiction, which means to say with collaboration. This is the constitutional reading of the device. The sole examination of the evidence by the judge is not authorized, especially since the criminal proceedings have just begun. Contamination must be repelled. The judge’s system of guarantees is a system of division of work and responsibilities. The culture of centralization in the figure of the judge needs to be abandoned. The parties need to assume their functions responsibly. In the previous model, the judge was overloaded with duties and responsibilities. He performed duties that were not his.

Destination of investigation documentation.

Caution of the investigation records:Paragraph 3 of this article stipulates that the records that make up the matters within the jurisdiction of the guarantee judge will be safeguarded at the court’s secretariat, available to the Public Prosecutor’s Office and the defense. This device is critical. It is an old aspiration of some offices the absence of contact between the judge and the inquisitive evidence. Critical because it goes against our culture. If it is to take a step of this size, it is necessary to construct an intermediate interpretation. In any case, the intermediate interpretation that we propose seems to us to be correct and, therefore, should be adopted as definitive. There is an understanding that the investigation records are part of the documents that must be attached to the file. It is an attempt to circumvent the literality of the law and also its intention. Like any unsystematic thesis,quid pro quo . The judge’s system of guarantees would be of no use if the judge, at the beginning of the process, could contaminate himself with the inquisitive evidence. The opposite thesis, fantasizing about the advantages for the accused of an adversarial process, supports the idea that the judge should be completely isolated from the evidence of the investigation. Adversarial process is selected and highly qualified prosecutor versusthe neighborhood attorney. In the case of defense promoted by the public defender’s office, there is, within the scope of the Federal Justice, on the one hand, an institution, the MPF, with an annual budget of R$ 7,050,649.84 (seven billion), and on the other, the Public Defender’s Office Federal public with a budget of BRL 588,659.16 (half a billion) – budget bill fiscal year 2020. The accusing institution has twelve times more human and material resources than the defender. Parity of Arms? On the one hand, an agency with investigative power, with power of requisition, possessing devices for interception of communications in its headquarters. On the other, an institution devoid of power, holding only rights. Those who have power rule. Who has the right to ask. The process cannot be turned into an adversarial procedure. This system is American. It is at odds with our cultural background and the origins of our criminal process. It is not possible to completely isolate the judge from the inquisitorial evidence. No citizen, in good conscience, endowed with ethical training, will decide the fate of another with half-truths. We do not see how the judge can take away someone’s freedom if evidence is hidden from him. It would be Cabra Cega procedural. The Blindfold of the Roman GoddessDice represents the rule of isonomy, it does not mean the possibility of judging without knowing evidence. In criminal matters, the rule of real truth prevails. The real truth is not the judge’s objective, it is the principle of the process . It is the process that seeks the closest approximation to the truth. The judge’s objective is to determine whether the evidence in the case file authorizes the conviction that the criminal hypothesis described in the complaint occurred . The best approximation of the truth is with contradictory and without inquisition. Searching for the truth does not mean resorting to inquisitorial actions, on the contrary. Luigi Ferrajoli states that one should judge with the formal truth . It is necessary to understand what the celebrated author of the book Law and Reason: Theory of Criminal Guarantee meant byformal truth . The Italian jurist gives this expression the meaning of proof that is in the case file. It is absolutely correct. It cannot be judged with extra-auto evidence. It is with Ferrajoli’s formal truth (filed evidence) that one is able to better approximate the real truth. But, then, how to solve the problem of the judge’s contamination by the inquisitive evidence? An interpretation of the present device occurs to us that, while avoiding contamination of the judge, does not completely isolate him from the evidentiary evidence produced in the investigation. First, a very important aspect: the comparison between the evidence at the instruction and that collected in the investigations, especially testimonials, contributes enormously to assessing the value of the evidence. This comparison is useful for both parties. The process in which, to base the defensive thesis, the contradictions between the inquisitorial testimonies and those of the instruction are dialectically examined is quite common. This doesn’t just favor the parties. It goes against the end of the process of maximum approximation to the truth, even if unattainable.

Proposal for an intermediate interpretation: The system of the judge of guarantees aims to avoid contamination, preventing the investigating judge from having direct contact with the inquisitorial evidence and imposing, before the beginning of the process, invasive and coercive measures. Pursuant to the third paragraph of article 3-C, the records that make up the matters within the competence of the judge of guarantees will be safeguarded at the court’s secretariat . The subject of competence of the guarantee judge is not, with regard to the phases, the criminal process, but the criminal investigation until the receipt of the complaint. Once the complaint is received, the records are sent to the Judiciary, where they are kept in the secretariat. However, the legislator does not explain what he meant by cautious. It is necessary to elaborate systematic interpretation to find the meaning of this expression. Cautious is what is safe , guarded . The records of the inquiry are, therefore, kept in the secretariat. Paragraph 4 of the device now being examined expresses that the parties are assured wide access to the records safeguarded at the guarantee court secretariat . Expressly ensure access only to the parts, and keep them safe, signals, with relative clarity, that the judge does not have the key to the closet door. Interpretation in the opposite direction would correspond to the overthrow of the guarantee judge system. Can the parties attach parts of the investigation to the file? Yes and no. No, in the course of the instruction of the process. Yes, in the end. The addition of parts from the inquiry to the process, at the beginning, being inquisitive and not contradicted, if read by the magistrate, can contribute to him making a pre-judgment regarding the criminal hypothesis. If examined at the end of the instruction, the judge already has a certain degree of conviction based on contradicted evidence. I mean, he already has a contradicted prejudgment. His impartiality, at this point, is reinforced. The parties may bring new elements, this time from the investigation records. These new evidence elements must be contradicted. Nothing will be added to the file without giving the other party the opportunity to manifest itself. First, the prosecution attaches documents. Next, the defense. The common deadline, in this case, would not be a good solution, since the defense, not knowing what the prosecution will add, would be left with the contingency of attaching documents, some unnecessary and others contrary to the interest it represents in the procedural relationship. According to some unnecessary and others contrary to the interest it represents in the procedural relationship. According to some unnecessary and others contrary to the interest it represents in the procedural relationship. According toarticle 402 , once the evidence has been produced, at the end of the hearing, the Public Prosecutor’s Office, the complainant and the assistant and, subsequently, the accused may request measures whose necessity arises from circumstances or facts ascertained in the investigation . This device authorizes the request for diligences that are related to facts ascertained during the investigation . This is the stage of relating what was found in the instruction with the documents (and testimonies filed in the investigation are included in the definition of documents) contained in the investigation. Therefore, a very important conclusion: the evidence and evidence found in the investigative phase, which are related (keep a probative bond) with circumstances or facts found in the investigation ,and only these documents can be attached by the parties to the process. The idea that pre-procedural inquisitorial evidence is devoid of value comes up against the clarity of article 155 , which imposes the rule that the judge cannot base his decision exclusively on the information collected in the investigation. If the judge cannot decide based exclusively on the evidence of the investigation, it is because he can also decide based on it. The evidence from the inquiry is valid for convincing, provided that it is in harmony with that collected during the contradictory instruction. They can be useful to both the prosecution and the defense. If confirmed by the procedural instruction, they favor the prosecution. If in contradiction and disharmony, they contribute to the declaration of innocence. Article 155, therefore, was not revoked due to the safeguarding of investigations. On the amount of pre-procedural evidence, see the heading  Evidence value of the investigationin comments to Article 4 of the CPP. Any request by the party during the course of the proceedings does not, in principle, dispense with the respective grounds. In order to add investigation documents to the file, the parties must substantiate the request by demonstrating the condition of article 402 : attached need that originates from circumstances or facts established in the instruction. The freedom to attach documents to the file is therefore limited. The party does not have the right to attach any document to the file. We are not referring only to the document contained in the survey, but to any document. If the party could add any documents to the process, nothing would prevent petitioning several times requesting the attachment of varied documents, without any relevance, to the point of transforming the records into an incomprehensible pile of papers (real or virtual). The annexation of the entire survey, as was done until then, is unthinkable in the new system. Therefore, the main conclusions: 1 – although the judge does not have access to the investigation records, he is not segregated from the probative universe; 2 – the parties (and not the judge) select what is important for the evidence, thus avoiding the cognitive deviation of the judge/investigator; 3 – the responsibility and participation of the parties in the process increase; 4 – the judge is freed from investigative inquiries, which allows him to study and judge better, that is, with better application of procedural and criminal law, which results in a gain in effectiveness of the principles of guarantee and public security.

Combination of unrepeatable evidence, measures for obtaining evidence or anticipating evidence: Some evidence cannot be repeated, they are unrepeatable . Examination of the corpus delicti and some expertise cannot, on some occasions, be repeated. They must be attached to the file, where they can be examined directly by the parties and the judge. Measures for obtaining evidenceare those requests of the investigator and respective authorizing decisions given by the judge of the guarantees related to invasive and precautionary measures. These documents must be deposited by the guarantee judge as an attachment to the file. The measures are listed for example in article 3-B, item XI and its paragraphs. A question that is not easy to answer is whether the result of the invasive measures should be appended or whether it remains within the investigation, a place where the investigating judge initially cannot know. It’s not an easy question. Nelson Hungary used to teach, in his unparalleled work Comments on the Penal Code, that the best way to assess whether an utterance is correct is by checking that it cannot result in absurd consequences. By hypothesis: an inquiry whose evidentiary evidence is based exclusively on documentary evidence and content of telephone interception. These two tests complement each other and demonstrate the commission of the crime. Isolated, however, they do not prove anything. During the investigation, will the judge only have access to documentary evidence? It would be absurd, as it would resemble an instruction given in a dark room. And what is serious, without contradiction. Therefore, the conclusion that the logic of the absurd allows us to reach is that the result of the invasive measures must be attached to the process. However, we recognize that it is a topic that deserves further study. And what are evidence anticipation measures ? Oarticle 156, item I , allows the judge to order, even before the criminal action is initiated, the anticipated production of evidence considered urgent and relevant, observing the need, adequacy and proportionality of the measure. Article 225, in turn, provides that, if any witness needs to be absent, or, due to illness or old age, inspire fear that at the time of the criminal investigation no longer exists, the judge may, ex officio or at the request of any of the parties , take him the deposition in advance. The guarantee judge, therefore, may determine the early collection of evidence. As it is proof that you must submit to the contradictory, in this case, exceptionally, the judge of guarantees will function as investigating judge. In the case of taking the testimony of a witness, a hearing will be scheduled with the participation of the investigated person, his defender and the prosecutor. As this is evidence submitted to the judicial contradictory, it can – and should – be attached to the process (and not safeguarded). By the way,


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