Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 392º CPP – Subpoena of the defense.

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Art. 392. The summons of the sentence will be made:
I – to the defendant, personally, if he is arrested;
II – to the defendant, personally, or to the defender appointed by him, when he is freed, or, if the infraction is bailable, he has posted bail;
III – to the defender constituted by the defendant, if he, whether bailable or not, the infraction, issued the arrest warrant, has not been found, and thus certifies the officer of justice;
IV – by public notice, in the cases of number II  , if the defendant and the defender who has been constituted are not found, and thus certifies the officer of justice;
V – by public notice, in the cases of number III  , if the defender that the defendant has constituted is also not found, and thus the bailiff certifies it;
VI – by public notice, if the defendant, not having constituted a defender, is not found, and thus certifies the bailiff.
§ 1 The notice period shall be 90 days, if a sentence of deprivation of liberty has been imposed for a period equal to or greater than one year, and 60 days, in other cases.
§ 2 The period for appeals will run after the end of the term established in the public notice, unless, during the course of the same, the subpoena is made by any of the other forms established in this article.

Subpoena in the electronic process

Subpoenas and deadlines in the electronic process:  See this same title  in our notes to article 370.

Personal summons in the electronic process : See  this same subheading  under the heading Subpoenas and deadlines in the electronic process in our notes to Article 370.

Advocate and Defendant Summons

Defender’s subpoena:  Article 392, in the provisions that dispense with the defender’s subpoena, is unconstitutional, as it violates the principles of broad defense and double jurisdiction. The summons of the defender’s sentence, whether public, appointed or constituted, will always be personal. See the subheadings  Personal summons of the Public Defender  and  Personal summons of the named defender  under the heading Summons of the Defender, the Public Prosecution Service and others in our notes to Article 370.

Subpoena of the accused:  The subpoena of the defender does not exempt the subpoena of the accused, nor does the subpoena of the accused exempt the subpoena of the defender. The provisions that exempt the accused in Article 392 violate the principles of full defense and double jurisdiction. This subpoena must be personal, also because the accused has the right to appeal by himself, without the intermediation of his lawyer ( article 577). The subpoena of the accused by public notice is only justified if all means have been exhausted with a view to effecting his personal subpoena. When subpoenaed, under penalty of nullity, the bailiff must deliver a copy of the sentence to the accused and ask whether he intends to appeal, since this constitutes his right and, in order for it to be exercised, it must be brought to his attention. Not informing the accused that he has the right to appeal means, given his natural ignorance of procedural law, the same as denying him the right to appeal. The delivery and the inquiry with the respective answer must appear in the subpoena certificate. Responding to the accused who wishes to appeal, is enough for the appeal to be processed.

Order of subpoena and start of appeal period:  There is no order of subpoena. It doesn’t matter who is subpoenaed first, the defender or the accused. As for the deadline for the appeal, it counts from the last subpoena. It is the best exegesis, in view of the precepts of ample defense and the double degree of jurisdiction.

Summons of the decision rendered by the court:  It is common ground that there is no need to summon the accused. Correct, since there is no legal provision for such an act.

Entire content of the sentence in the public notice:  It is discussed in the jurisprudence about the need or not that the subpoena of the sentence by public notice contain its entire content. If, in the personal subpoena, the bailiff must deliver a copy of the sentence to the accused, there are no reasons why the notice should not include the decision in full.

Jurisprudence

The Public Defender’s Office is summoned only with a personal summons:  Despite the defender’s presence at the hearing for the reading of the conviction, the Public Defender’s Office is summoned only with a personal summons, by sending the records ( HC 125.270, rel. Min. Teori Zavascki, judgment on 23-6-2015, judgment published in the DJE of 3-8-2015  – Newsletter 791, Second Panel).

Imprisonment of the defendant cited by edict. Need for personal summons:  The defendant is arrested during the term of the subpoena by public notice of the conviction, this subpoena is impaired and must be carried out in person ( STJ, RHC 45.584/PR, Reporting Minister Nefi Cordeiro, judged on 5/3 /2016, DJe 12/5/2016 – Newsletter n. 583 ).

In the personal subpoena of the defendant about the sentence of pronouncement or conviction of the Jury, the absence of presentation of the term of appeal or the non-inquiry about his intention to appeal does not generate nullity of the act. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

RHC 061365/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/03/2016, DJE 03/14/2016

HC 248986/PR, Rel. Minister Nefi Cordeiro, judged on 03/03/2016, DJE 03/10/2016

HC 233133/ES, Rel. Minister Laurita Vaz, Fifth Panel, judged on 10/22/2013, DJE 11/05/2013

RHC 012853/SP, Rel. Minister Gilson Dipp, Fifth Panel, judged on 09/03/2002, DJ 10/14/2002

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