Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 352º CPP – Content of the writ.

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Art. 352. The writ of summons shall indicate: 
I – the name of the judge;
II – the name of the plaintiff in actions initiated by complaint;
III – the name of the defendant, or, if unknown, his characteristic signs;
IV – the residence of the defendant, if known;
V – the purpose for which the citation is made;
VI – the judgment and the place, the day and the time in which the defendant must appear;
VII – the signature of the clerk and the signature of the judge.

Contents of the writ of summons

The purpose for which the summons is made:  The writ of summons must contain the purpose for which it is being made, so that the accused can take the necessary measures for his defense. The purpose is to make the accused aware that he is being prosecuted for a certain offense (a copy of the complaint must be delivered), who has ten days to offer a defense in writing (and who must appoint a private defender or seek a lawyer to do so). defender before the Public Defender’s Office, if you do not have financial conditions), defense in which you can claim everything that interests you in your favor, offer documents and justifications, specify the intended evidence and enlist witnesses, qualifying them and requesting their subpoenas, when necessary ( articles 396 and 396-A). He should also be warned that, if he does not present a defense, the process will continue without him being notified of the other procedural acts. In the case of the procedure under the competence of the Jury Court, the rite is the same ( article 406 ).

The citation in Law n. 9,099/95:  Pursuant to  article 78 of Law no. 9.099/95  (Law of Special Courts), the denouncement or complaint is offered at a hearing, will be reduced to term, delivering a copy to the accused, who will be summoned with it and immediately informed of the designation of day and time for the instruction hearing and judgment. If the accused is not present, he will be summoned by a warrant notifying him of the date of the instruction and trial hearing, and he must bring his witnesses or present a request for subpoena, at least five days before it is held.

The judgment and the place, day and time at which the defendant must appear:  This requirement, contained in item VI, is not valid for ordinary and summary proceedings. This provision is revoked by Law n. 11,719/2008, which amended  articles 394 and following , which deal with the common procedure. Previously, the defendant was summoned to appear at a hearing for the purpose of being interrogated and, subsequently, he had three days to offer his prior defense. Currently, the accused, after offering the complaint, is summoned to offer written defense. Then, the magistrate, examining the evidence, the grounds for the complaint and the defense, summarily acquits the accused ( Article 397 ) or designates a day and time for the hearing ( Article 399) .), determining the subpoena of the accused, among others, to attend it.

Interrogation as the last act of gathering evidence:  Interrogation is the last act of the hearing, also in special laws that contained provisions to the contrary before Law n. Law No. 11,719, of 2008). On the subject, see the title  Interrogation as the last act of gathering evidence  in comments on Article 400.

Nullity of the citation due to lack of its purpose in the writ:  The purpose of the citation constitutes a very important requirement. The purpose for which the summons is served is not included in the writ (see subtitle  The purpose for which the summons is made  in the title Contents of the writ of summons , in notes of the device now under analysis) and a copy of the initial accusatory piece is not delivered to the accused (or if it is missing from the certificate of the bailiff that the copy was delivered), the summons is null and void. 

Other nullities of the writ of summons:  There will also be nullity of the summons if the identification of the process (its number) and its location (which registry office is missing), the name of the plaintiff in the actions initiated by complaint, the name of the defendant or its signs characteristics, signature and initials of the judge. In these hypotheses, if the defense is not presented, and the accused, subpoenaed, does not appear at the hearing, there is damage and the nullity must be recognized. It matters little that he was appointed dative defender.

Nullity and res judicata:  The lack of citation entails absolute nullity of the process (Article 564, III, “e”), as it is an essential act. It can be argued through  habeas corpus  against res judicata. The damage is presumed and does not admit evidence to the contrary.

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