Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 306. The arrest of any person and the place where he is found will be communicated immediately to the competent judge, the Public Prosecutor’s Office and the prisoner’s family or the person indicated by him. (Wording provided by Law No. 12,403 of 2011).
§ 1 Within  24 (twenty-four) hours after the arrest, the arrest warrant will be forwarded to the competent judge and, if the person charged does not inform the name of his lawyer, a complete copy for the Public Defender’s Office. (Wording provided by Law No. 12,403 of 2011). 
§ 2. Within  the same period, the prisoner will be given, upon receipt, the note of guilt, signed by the authority, with the reason for the arrest, the name of the driver and those of the witnesses. (Wording provided by Law No. 12,403 of 2011).

Communications

Immediate communication of arrest:  The arrest of any person and the place where they are will be communicated immediately to the competent judge, the Public Ministry and the family of the prisoner or the person indicated by him. This provision is constitutional:  article 5, item LXII of the CF : “the arrest of any person and the place where he is found will be communicated immediately to the competent judge and to the family of the prisoner or to the person indicated by him”. In the CF there is no provision for communication to the Public Prosecutor’s Office. The communication to the MP was added to article 306 with the new wording given by Law n. 12,403/2011. But there was already this provision in article 10 of  Complementary Law 75/93  and in  article 80 of Law n. 8,625/93 – MPF and MPE laws). By immediate communication to the family or the person indicated, it is understood immediately after the arrest. In relation to the Public Prosecutor’s Office and the judge, the deadline is 24 hours and occurs with the submission of the records. Communication with the family is important, as they can arrange for a family member or a lawyer to accompany the prisoner during the drawing up of the report. 

Forwarding the records to the judge within 24 hours:  From the time of arrest, the police have a period of 24 hours to draw up the arrest report and forward it to the magistrate. Failure to forward the case within 24 hours constitutes an illegal constraint, and the prisoner must be released by the police authority itself or by the judge through  habeas corpus . The 24-hour period cannot, in principle, be exceeded. If it is, it can only be exceeded for a few hours, upon justification with the sending of the car parts that are already ready. 

Custody Hearing: The prisoner must be presented for the custody hearing. See comments to Article 310 .

Jurisprudence

Once preventive detention is decreed, the thesis of excessive time in communicating the act is overcome. Source: Jurisprudence in theses (STJ).

Judgments:

RHC 102488/CE, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/16/2018, DJE 10/24/2018

RHC 102209/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 09/18/2018, DJE 09/28/2018

HC 375488/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/16/2017, DJE 03/15/2017

HC 325958/AL, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 08/18/2015, DJE 09/01/2015

RHC 39284/SP, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 09/19/2013, DJE 09/26/2013

RHC 37334/SP, Rel. Minister Marilza Maynard (TJ/SE Judge), Fifth Panel, judged on 06/11/2013, DJE 06/17/2013

Follow-up by the Public Defender, note of guilt and custody hearing

Follow-up by the Public Defender: The  Public Defender’s Office has institutional functions  to monitor the police investigation , including the immediate communication of the arrest in flagrante delicto by the police authority, when the prisoner does not appoint a lawyer ( article 4, item XIV of Complementary Law n. 80/1994). The measure aims at allowing the defense to take the measures within its scope, in particular to verify the possibility of seeking in court the relaxation of the prison. Without professional help, it is difficult for the prisoner to seek the relaxation of his prison before the judge. The role of the lawyer at this stage is very important. You can provide documentary proof of various elements of evidence capable of contributing to the immediate release of prison, such as demonstrating that the prisoner has a fixed residence, has a family, children to support, employment, etc. Defendants with financial conditions can hire a lawyer for these purposes. Poor, no. It should be noted that the right to the assistance of a lawyer is a constitutional guarantee ( article 5, item LXIII of the CF ). 

Absence of a Public Defender’s Office in the locality:  In this case, the judge must appoint a lawyer.

Delivery of the guilty note:  Also within 24 hours, the accused must be handed the guilty note, which he will issue a receipt that must be attached to the case file. It will be signed by the authority, with the reason for the arrest, the name of the driver and the witnesses. The purpose of the note is to identify those responsible for the arrest and to define the date of the arrest for counting the terms of the investigation, provisional and definitive arrest. The delivery of the guilty note has a constitutional basis: “the prisoner has the right to identify those responsible for his arrest or for his police interrogation” ( article 5, item LXIV, of the CF ). In the case of a dangerous prisoner, the name of the witnesses on the guilty note is waived (analogous application of  Law n. 9.807/99, which protects witnesses). Failure to deliver the note of guilt generates illegal embarrassment.

Custody hearing: See the title Deadline-for-the-judge-to-decide,-custody-hearing,-illegality-of-flagrante-and-preventive-decree in notes to article 310.

Jurisprudence

Any nullity in the arrest warrant in flagrante delicto due to the lack of assistance by a lawyer is only verified if the person being led is not given the right to be assisted by a technical defender, being sufficient the reminder, by the police authority, of the prisoner’s rights provided for in article 5 , LXIII, of the  Federal Constitution. Source: Jurisprudence in theses (STJ).

Judgments:

HC 442334/RS, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 06/21/2018, DJE 06/29/2018

HC 382872/TO, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 05/09/2017, DJE 05/15/2017

RHC 68502/RS, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 04/18/2017, DJE 04/26/2017

RHC 63063/RS, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 10/27/2015, DJE 11/16/2015

RHC 39284/SP, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 09/19/2013, DJE 09/26/2013

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