Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 38 CPP – Deadline for the right of complaint and representation to expire.

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Art. 38. Unless otherwise provided, the offended person, or his legal representative, will lose the right to file a complaint or representation if he does not exercise it within a period of six months, counting from the day he learns who the author of the crime is, or, in the case of art. 29, of the day on which the deadline for filing the complaint expires.
    Single paragraph. The decay of the right of complaint or representation will be verified, within the same period, in the cases of arts. 24 , sole paragraph, and 31 .

https://www.youtube.com/embed/_vbIeayfETo?feature=oembedThis same video appears in articles 25, 38 and 39.

Deadline for the right to complain and representation

Article 38 of the CPP:  The victim or his representative loses the right of complaint or representation if he does not exercise it within six months, counting from the day on which he learns who is the author of the crime. In the case of subsidiary private action, counted from the day on which the deadline for filing the complaint expires ( article 46 ). The decay constitutes cause of extinction of punishment ( article 107, item IV of the CP ). The deadlines for filing a complaint are those set out in Article 46.

Beginning of the period:  The period begins to run on the day on which the victim or his representative becomes aware of the authorship of the crime. As long as the offended party or the representative has suspicions, without full conviction, the deadline does not run.

Extinction of the statute of limitations:  The statute of limitations expires on the date of distribution of the criminal complaint (and not on the date on which it is received).

Criminal term:  The decadence has a criminal nature. Thus, as for its count, it obeys the rule of  article 10 of the CP .

Non-extendable period:  The period of decay cannot be extended. It does not suspend or interrupt. Deadlines that end on a Sunday or a public holiday are not extended.

Exercise of the right of complaint and representation:  While the representation can be exercised before the police authority, the complaint, in order to avoid the decay, needs to be offered in court. The  complaint  addressed to the police (which is not exactly a complaint, but rather an authorization/request to open an investigation) does not prevent the decay period from continuing to flow normally.

Special curator:  When appointed special curator ( article 33 ), you are granted a period of six months to present the complaint, counting from the notice of appointment.

Doubt as to the date of knowledge of the facts:  Doubt favors the plaintiff and the representative. See the subheading  Interpretation of the norms that regulate the representation in the title Crimes of private and public action. Distinction , in comments to Article 24.

Deadlines independent of the minor and the representative

The position of Damasio de Jesus: Among the penalists, with regard to the rights of complaints and representation of minors, the person who best exposes his point of view on this matter is Damásio de Jesus. He says that, in the case of an offended person under 18 years of age, the term does not run against him. The term that flows to the legal representative is counted from the date of knowledge of the authorship of the crime. Let us assume that the minor is 16 years old, transmitting knowledge of authorship to his representative on that same date. From that date, the representative will have a period of six months. If he does not exercise it, the offended party, upon reaching the age of 18, will have a period of six months to do so. What if the offended party, aged 16, does not reveal the fact and authorship to the representative? Upon reaching the age of 18, the victim will have a period of six months (JESUS, Damásio de. Code of Criminal Procedure Annotated. 27th. ed., Saraiva: 2015, p. 31).

Decadence in subsidiary private criminal action

Possibility:  The institute of decadence applies to subsidiary private criminal action. In this case, the period of six months is counted from the day on which the period for filing the complaint expires (deadlines in  Article 46 ).

the single paragraph

Articles 24, sole paragraph, and 31:  Pursuant to the provisions of the sole paragraph of this article 38, the right of complaint or representation shall expire within the same period, in the cases of articles 24, sole paragraph, and 31. The question that arises is the following: from when does the deadline run, the  death of the victim  or the date on which the persons listed in Articles 24 and 31  become aware of the fact and authorship ? It was precisely this question that the sole paragraph of the present device sought to resolve by saying that the decay will occur  within the same period. It is within the same term as the  caput , that is, if it counts on the  knowledge of the authorship .

Fim

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