Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 314.  Under no circumstances will preventive detention be decreed if the judge  verifies, from the evidence contained in the file, that the agent committed the act under the conditions set forth in items I, II and III of the caput of article 23 of Decree-Law no. 2,848, of  7 December 1940 – Penal Code. (Wording provided by Law No. 12,403 of 2011).

Excluding and discriminating

Exclusions of anti-legality:  In the same way that arrest in flagrante delicto must be relaxed in the face of evidence of the practice of the fact under the mantle of exclusions of anti-legality ( article 310, first paragraph ), preventive arrest is not decreed or revoked if there are indications of the practice of the act in the circumstances of  article 23 of the Penal Code : in a state of necessity, in self-defence, in strict compliance with a legal duty or in the regular exercise of law. Proof of these exclusions is unnecessary, with only a few indications capable of generating some doubt as to the presence of these suppressors of illegality.

Exclusions of culpability:  By analogy, if there are evidences that the agent has committed the act covered by exclusions of guilt, the judge must, in the same way as with exclusions of unlawfulness, grant provisional release. Irresistible moral coercion ( article 22 of the CP ), hierarchical obedience (article 22 of the CP), excusable prohibition error (article 21 of the CP), unenforceability of different conduct and fortuitous drunkenness ( article 28, paragraph 1 of the CP) exclude guilt. ). 

Discriminants in the special part:  Pre-trial detention is not applied or revoked in the case of discriminants contained in the special part of the Penal Code, such as, for example, abortion performed by a doctor is not punished if there is no other way to save the pregnant woman’s life ( article 128 of CP ); they do not constitute an insult or defamation punishable by the offense raised in court, in the discussion of the cause, by the party or by its attorney-in-fact; the unfavorable opinion of literary, artistic or scientific criticism, except when unequivocal the intention to injure or defame; and the unfavorable concept issued by a public official, in appreciation or information provided in the fulfillment of official duty  (art. 142 of the CP).

Habeas corpus :  Whether or not the preventive measure is revoked when the circumstances of article 314 are present, the  habeas corpus is applicable based on article  648, item I : “Coercion shall be considered illegal: I – when there is no just cause”.

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