Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 357º CPP – Requirements for summons by warrant.

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Art. 357. The requirements for summons by writ are:
I – reading of the writ to the summoned by the officer and delivery of the counterfeit, in which the day and time of summons shall be mentioned;
II – statement by the official, in the certificate, of the delivery of the counterfeit, and its acceptance or refusal.

Writ of summons requirements

Comments:  After reading or explaining the content of the writ of summons, the officer delivers a copy of the writ to the accused (counterfeit), where he must write the day and time the summons was served. This date entered on the copy delivered to the person being served is important, as it is from there that the deadline for the presentation of the written defense is counted. Next, draw up a certificate stating that you have read the warrant, that you have delivered a copy containing the day and time of the summons and that the accused has accepted (or refused) it.

Reading of the writ of summons:  In the case of an illiterate accused or a simpler person, it is mandatory that the bailiff explain (instead of reading) the content of the writ, expose what accusation it is about (what fact), what the deadline for the defense (ten days), that the accused must hire a lawyer or look for the public defender (providing him with the address) and that he can enlist witnesses. The expression  reading  in the law must be understood in a broad sense to mean the exposition of the meaning of the warrant. A different understanding would be to make a dead letter of this device that aims to enable the accused, obtaining the knowledge that he is being accused, to provide his defense.

Release of the certificate in the writ itself:  The certificate can be launched in the writ of summons itself.

Public faith:  The bailiff has public faith. Thus, the acknowledgment or signature of the person summoned on the writ is unnecessary. It is sufficient for the officer to declare that he served the summons. The content of the officer’s certificate is endowed with a presumption of veracity and only robust evidence to the contrary is capable of undoing it.

Service by the notary:  The scrivener does not have the power to execute the service.

Nullity of the certificate:  The absence in the certificate that the reading was carried out or that copies of the complaint and the writ (counterfeit) containing the day of the summons were delivered result in the nullity of the certificate and, consequently, of the citation itself.

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