Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 351. The initial summons will be made by warrant, when the defendant is in the territory subject to the jurisdiction of the judge who ordered it.

Constitutional foundation of the right to citation

Fundamentals of the right to be summoned:  It is through the summons that the accused becomes aware that there is a legal proceeding against him and that he must provide for his defense. The citation constitutes the right of the accused. It stems from  article 5, item LV of the CF , which assures the accused “the contradictory and full defense, with the means and resources inherent to it”. There is no way to carry out the contradictory and carry out the broad defense without the defendant becoming aware that an accusation has been made against him. Hence the need for him to become aware not only that there is a process against which he must defend himself, but also the full content of the accusation formulated. It also derives from article 8, letter “B”, of the Pact of San José, Costa Rica, which is hierarchically positioned below the CF, but above the ordinary law (above the CPP), which prescribes constituting a judicial guarantee the “communication prior and detailed to the accused of the accusation formulated”.

Citation in the electronic process

Electronic process and summons:  In the electronic process, the next destination of all judicial proceedings, the summons of the accused, according to  article 4, paragraph 6 of Law n. 11.419/2006  (interpreted in the opposite sense), is not electronic (nor are its subpoenas, pursuant to  article 370 , which orders, where applicable, the application of the rules governing service of process to the subpoena). The summons is not electronic because the accused cannot be required to register in advance in the electronic process. 

Citation of the incapable and injustice in the application of a security measure:  The incapable person must be summoned in the person of his guardian. If he does not already have one, he will be appointed guardian ( article 149, paragraph 2 ), a charge that should preferably fall on a family member. Next, a medical-legal examination must be carried out, and the measures in  articles 149  to 154 must be taken, with a view to proving irresponsibility under the terms of  article 26 of the CP. If the incapacity is identified when the process is already in progress, the citation must be annulled and, consequently, all other acts of the process will be annulled, since little or nothing can be used. The accused must be appointed guardian, if he does not have one, and the summons must be redone in the person of the guardian. Although this is not a criminal procedural issue, but a criminal one, the record is that the security measure can only be applied if the medical expertise proves not only the incapacity but also the dangerousness. It is because the crime, in the insane, can often represent an isolated and accidental occurrence in his life, with no criminal reasons that justify the application of a security measure. The mere fact of being mentally ill or insane cannot justify the automatic imposition of a security measure, let alone a detention measure. One cannot start from the childhood superstition that “crazy people” are dangerous, since, from the point of view of the science of psychology, there is no such understanding. Patients dismiss our fears, they do need our understanding and support. The presumption of dangerousness of the mentally ill or insane is devoid of scientific foundation, and it is even known that most of the so-called “crazy” are harmless. In addition, it should be noted that, according to criminal law, in order to verify the cessation of dangerousness (at the end of the minimum term of the security measure and annually thereafter), a medical examination is carried out. However, if the law determines the carrying out of a Patients dismiss our fears, they do need our understanding and support. The presumption of dangerousness of the mentally ill or insane is devoid of scientific foundation, and it is even known that most of the so-called “crazy” are harmless. In addition, it should be noted that, according to criminal law, in order to verify the cessation of dangerousness (at the end of the minimum term of the security measure and annually thereafter), a medical examination is carried out. However, if the law determines the carrying out of a Patients dismiss our fears, they do need our understanding and support. The presumption of dangerousness of the mentally ill or insane is devoid of scientific foundation, and it is even known that most of the so-called “crazy” are harmless. In addition, it should be noted that, according to criminal law, in order to verify the cessation of dangerousness (at the end of the minimum term of the security measure and annually thereafter), a medical examination is carried out. However, if the law determines the carrying out of a for the purpose of verifying the cessation of dangerousness (at the end of the minimum term of the security measure and annually thereafter), a medical examination is carried out. However, if the law determines the carrying out of a for the purpose of verifying the cessation of dangerousness (at the end of the minimum term of the security measure and annually thereafter), a medical examination is carried out. However, if the law determines the carrying out of a cessation of dangerousness, it is to be assumed that this same dangerousness has been verified previously, also through expert examination. How to prove what has ceased if it was not even proven that it existed? To stop incarceration, examination is necessary; to incarcerate, no – insane idea model. With this same position, Antonio Carlos Santoro Filho, quoted by Isabela Britto Feitosa, teaches: “it is concluded, therefore, that the prediction of the need to impose a security measure of internment based only on the circumstance that the person not responsible has committed an act described as a crime, subject to imprisonment, it does not resist a teleological interpretation of the legal system or social facts, because when dealing with the dangerousness of a concrete fact belonging to reality,Isabela Britto Feitosa – The application of the security measure in Brazilian criminal law – Jurisway ).

Nullity of citation

Nullity of the citation:  The nullity of the process is verified when the citation is missing ( article 564, III, “e ”). The citation, to configure the nullity, can either not exist or lack the requirement of existence (it exists in fact, but not in law) or essential formality. The nullity of the citation is remedied if the interested party appears before the consummation of the act, although he declares that he does so for the sole purpose of arguing it. The judge will, however, order the suspension or postponement of the act when he recognizes that the irregularity could harm the right of the party ( article 570 ). Under these conditions, if, notwithstanding the absence of a valid citation, a defense is presented, the nullity is overcome, in view of the absence of prejudice.

Jurisprudence

Absence of the defendant in the proceedings:  Even if the defendant has appointed a lawyer before the filing of the complaint – on the date of arrest in flagrante delicto – and the patron has acted, by determination of the Judge, throughout the criminal investigation, the criminal action is void who has convicted the defendant without his presence, who was not summoned or personally attended any act of the proceeding, with no unequivocal proof that he became aware of the complaint ( REsp 1.580.435-GO, Reporting Judge Rogerio Schietti Cruz, judged on 3/17/2016, DJe 3/31/2016 – Newsletter n. 580 ).

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