Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 389 CPP – Moment of publication of the judgment.

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Art. 389. The judgment will be published in the hand of the clerk, who will write  the respective term in the records, registering it in a book specially destined for this purpose.

Distinction between publication and subpoena of judgment

Publication and subpoena:  Publication and subpoena of the sentence are not to be confused. The publication takes place with the attachment of the decision to the file by the clerk, who, on the occasion, launches a term of attachment of the sentence to the file. While not published, the sentence does not produce any legal effect, it is just a written text. It is not a legal act. Also in the electronic process, publication and subpoena are two distinct acts that cannot be confused. Publication is the launch of the sentence in the electronic process. The subpoena is made by the party itself becoming aware of the decision or upon the expiration of a period of ten days from the publication. In the electronic process, the clerk does not participate in the publication of the judgment. The magistrate himself enters his decision into the system. See title  Subpoenas and deadlines in the electronic process in the notes to article 370.

Interruption of prescription and publication in hearing

Publication and prescription:  It is the publication – not the subpoena – that interrupts the prescription, according to  article 117, item IV, of the Penal Code .

Publication at a hearing:  The sentence handed down at a hearing does not need to be attached, as it is included in the minutes of the hearing itself.

Jurisprudence:

Movement of physical files on the internet does not prove publication of sentence:  Notary omission. Doubt regarding the receipt of the sentence. Art. 389 of the CPP. Mere launch of procedural movement on the internet. Requirements not met. Prejudice detrimental to the defendant. Extinction of punishment by retroactive prescription. Occurrence. If there is doubt resulting from the failure of the notary to certify the date of receipt of the judgment pursuant to art. 389 of the CPP, the date of publication cannot be presumed with the mere posting of the records on the internet, in order to verify the occurrence of prescription of the punitive claim ( HC 408.736-ES, Reporting Min. Maria Thereza de Assis Moura , unanimously, judged on 02/06/2018, DJe 02/15/2018  – Newsletter 619).

Absence of jurisdictional power and change of sentence

Transfer of the judge and publication:  If the judge, when the sentence was published, was already designated to act in another court or district, the sentence is null, since it was published when there was no jurisdictional power to do so.

Publication and amendment of the sentence:  Once the sentence is published, it can no longer be changed, except in two hypotheses: to correct a material error (correct the result of a sum of months for the purpose of calculating the total sentence, for example) or by decision in declaratory embargoes. Embargoes, pursuant to  Article 382 , ​​may be filed with the aim of removing obscurity, ambiguity, contradiction or omission.

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