Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 395 CPP – Rejection of the complaint.

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Art. 395. The denouncement or complaint will be rejected when: (Wording provided by Law No. 11,719, of 2008).
I – is manifestly inept; (Included by Law No. 11,719 of 2008).
II – there is no procedural requirement or condition for the exercise of the criminal action; or (Included by Law No. 11,719 of 2008).
III – there is no just cause for the criminal action. (Included by Law No. 11,719 of 2008).
Single paragraph. (Revoked). (Included by Law No. 11,719 of 2008).

Reference to Article 41 of the CPP

Reference to article 41 of the CPP:  In comments to  article 41 , see elements of the complaint, nullities, supply of omissions, recognition of nullity after receipt, recognition of the nullity of the complaint after sentence, Corporate crime or collective authorship and description of the facts , Alternative denunciation and jurisprudence on the subject, denunciation and crimes of corruption, corporate crime, drugs, bidding, principle of insignificance, 

 Action conditions

Assumptions and conditions of the action:  Procedural assumptions are the essential requirements for the establishment of a procedural legal relationship. Among others: lack of lis pendens, res judicata, illegitimacy, absolute incompetence, suspicion. There are three generic conditions of the action: the legal possibility of the request, the interest to act and the legitimacy. The generic conditions of the action are those requirements that must be present in each and every action. Action-specific conditions are those that are required for only certain actions. Examples of specific conditions are representation, requisition and posting of tax credit.

Content of the complaint:  Pursuant to  article 41 , the complaint or complaint will contain the exposition of the criminal act, with all its circumstances, the qualification of the accused or clarifications by which he can be identified, the classification of the crime and, when necessary, the role of witnesses.

Jurisprudence

Rejection of a criminal complaint for lack of just cause and fees : It is possible to order the plaintiff to pay attorney fees in the event of rejection of a criminal complaint for lack of just cause ( EREsp 1.218.726-RJ, Reporting Min. Felix Fischer, judged on 6/22/2016, DJe 7/1/2016 – Newsletter No. 586 ). REJECTION 395

Absence of active legitimacy of the indigenous councils in criminal matters:  The indigenous councils do not have active legitimacy in criminal matters. Consequently, the criminal complaint that seeks to impute the commission of crimes of racism and incitement to violence and hatred against indigenous peoples to parliamentarians must be rejected ( Inq 3.862 ED/DF, rel. min. Roberto Barroso, judged on 18- 11-2014, judgment published in the DJE of 12-12-2014  – Newsletter 768, First Panel). LEGITIMACY 395

Ineptitude of the complaint

Comments:  Inept, says Aurélio, he has no aptitude. Incapable, foolish, idiot. The complaint is foolish, idiotic, inept when (1) the condition of the action is absent or when (2) it is null. In the first case, of ineptitude in the strict sense, the action lacks a condition (legal possibility, interest or legitimacy). In the second case, of nullity of the complaint, the formal requirements (existence requirements or essential formalities) are missing in the accusatory document ( article 41 of the CPP ).

Nullity:  A null claim is inept. The null complaint is worthless. A null complaint is one which lacks either an existence requirement or an essential formality (elements of  Article 41 of the CPP ). The null complaint must not be received by the judge, that is to say – and that is the same to say – it must be rejected by the judge.

With regard to the requirements of the denunciation, its reception and rejection:  See comments to  article 41 .

Correctness of omissions in the complaint : See our notes to  Article 564 .

Nullities of the complaint and complaint:  See our notes to  Article 564 .

Reasons for ineptitude

Absence of legal possibility of the request:  The legal possibility of the request is one of the conditions of the action. It means that the author of the action must ask for something viable in the abstract. The request must comply with the law in theory. Thus, it is legally impossible to describe an atypical fact followed by a request for a sentence of deprivation of liberty. Example: “ Defendant “A” was wearing pants and that is why I ask for her to be sentenced to prison.” Wearing pants is not a crime. It is also legally impossible to describe a typical fact followed by a request for a sentence not provided for by law. Example: “A stole a watch, so I ask that he be hanged.” Likewise, it is not legally possible to describe a fact practiced under the protection of exclusion of anti-legality followed by a request for conviction. Example: “John killed Mario in self-defense, for which I ask for his conviction.” Faced with the exclusion of antilegality, there is no crime and, consequently, there is no possibility of the existence of the right to punish. 

Punishment extinguished as a cause of legal impossibility of the request:  Normally placed in a separate chapter, the punishability extinguished by prescription or another cause is, in fact, one of the reasons that lead to the recognition of the legal impossibility of the request. If the offense is prescribed, it is legally impossible to ask for the conviction of its author. 

Absence of interest to act:  The interest to act as a condition of the action is not expressed in the CPP. It is implicit in all the norms of this legal text that make the complaint depend on evidentiary elements. The lack of interest to act is the reason for the ineptitude of the complaint. There is only interest in moving the judicial apparatus with a view to investigating a criminal act when there are indications that it has been committed and that a certain person is the perpetrator. In this way, the existence of evidentiary elements is indispensable for the filing of criminal action ( legal smoke). Action cannot start from nothing. It cannot arise from the sole imagination of the accuser. The delinquent hypothesis must be supported by elements of conviction (survey or other informational elements). More: these evidentiary elements must indicate the commission of a crime, that is to say, the typical adequacy is not enough, it is also necessary that it is not evidenced – proven, demonstrated – the absence of a causal link, the absence of intent or guilt ( as elements of the typical fact), the practice of the fact under the protection of exclusion of unlawfulness or that is not evidenced as an exclusive cause of guilt. Hence the distinction: – if the fact narrated in the complaint is not a crime, the legal possibility of the request is absent; – no matter what the complaint says,

Retroactive prescription considered the prospective penalty as a cause of lack of interest to act:  It is possible to recognize in advance the retroactive prescription considered the prospective penalty. In this case, this recognition is based on the absence of interest in acting. There is no reason to put the expensive judicial apparatus in motion in the direction of uselessness, of purposelessness. This is why the recognition of the retroactive prescription for the prospective sentence can be done even before the beginning of the criminal action. It should be noted, however, that for some years now, the Courts have started to deny the possibility of recognizing the statute of limitations, taking into account the penalty in perspective, and in 2010, the Precedent 438 of the STJ was even  published : It is inadmissible to extinguish the punishment by the prescription of the punitive claim  based on a hypothetical penalty, regardless of the existence or luck of the criminal process. There is another impediment to the recognition of the statute of limitations considered as the prospective penalty. It is Law n. 12,234/2010, which added  paragraph 1. to article 110 of the CP , which ended up with the following wording:  § 1 The statute of limitations, after the condemnatory sentence becomes final and unappealable for the prosecution or after the appeal is dismissed, is regulated by the penalty applied, and cannot, under any circumstances, , have as initial term a date prior to the denouncement or complaint . The unconstitutionality of this device is clear, since it violates the principles of isonomy ( article 5, of CF), proportionality ( article 5, items XLII, XLIII, XLIV, XLVI, XLVII ) and the reasonable duration of the process ( article 5, LXXVIII). Violation of the principle of equality is that the law establishes different statute of limitations for identical situations (bargain before or after receipt of the complaint). There are no reasons to justify that unequal treatment is given to prescription before and after receipt of the complaint. If a defendant is sentenced for a given offense to a sentence of two years, and if five years have elapsed between the date of receipt of the complaint and the sentence, retroactive prescription applies. If another defendant, in another proceeding, is sentenced to the same sentence of two years, and five years having elapsed between the date of the offense and the receipt of the complaint, there is, under the terms of paragraph 1 of article 110, retroactive prescription. What is the mysterious reason for this unequal treatment? There is not. And if there are no reasons to justify unequal treatment, present is the violation of the constitutional principle of isonomy. The violation of the principle of proportionality is in whom the prescription must be proportionate to the penalty applied. The statute of limitations is directly related to the length of sentence. More severe penalties have longer statute of limitations. Once the applicable penalty has been established by the judgment, it is this that becomes effective for assess  the seriousness of the offense and the statute of limitations. There must necessarily be proportionality between the statute of limitations and the penalty applied. Paragraph 1 of Article 110 violates the constitutional principle of reasonable duration of the process, as it authorizes the Police Authority to postpone the investigation for many years. Similarly, the Public Prosecutor’s Office can sit on the investigation and take many years to file a complaint. For example, the offense of reception ( article 180 of the CP)  has a maximum sentence of 4 (four) years. The deadline for filing a complaint, pursuant to article 110, paragraph 1, is eight years long ( article 109 of CP). Another example, qualified reception (article 180, paragraph 1 – the one in which reception is practiced for commercial purposes) has a maximum penalty of 8 (eight) years, the deadline for offering the complaint is 12 (twelve) years. Clearly, the statute of limitations are very long for crimes of relatively minor gravity.

Illegitimacy of the party:  The legitimacy of the party is a condition of the action. Illegitimacy can be passive or active. Thus, if the MP files a complaint in a private action crime, there is active illegitimacy on the part. If the offended party, within the period of offering the complaint, files a criminal complaint, ditto, there is active illegitimacy on the part. If the complaint is filed against a minor under 18 years of age, there is passive illegitimacy on the part.

Absence of representation or requisition:  Representation and requisition are not generic conditions of the action. They are specific, as they are only required in certain types of action. The absence of representation or requisition in the criminal action that depends on them matters in the recognition of the ineptitude of the complaint. 

Tax evasion and social security contribution, assessment, installment and payment:  In crimes of tax evasion, evasion and misappropriation of social security contribution, the punitive claim of the State is suspended while the payment is being made through installments. If these debts are paid, the liability is extinguished. It matters little if the payment is made before or after the complaint (see  article 9 of Law n. 10.684/2003 ). The tax representation relating to these offenses can only be forwarded to the MP by the Administration after the final decision on the requirement of the tax credit. The punitive claim is suspended while the installment is being paid, provided that the request for installment has been formalized before the receipt of the complaint (see article 83 of Law n. 9,430/96 ). Bearing in mind the possibility of the debtor paying the due tax and that it is the administrative entry that will confirm (or not) the existence of the debt and its value, it is that the Binding  Precedent 24 of the STF :  It does not typify a material crime against the tax order  ,   provided for in article 1 , items I  to IV, of Law no.  of the Precedent). Under the terms of this Precedent, the launch would not be a condition of the action, but would be part of the criminal type. But that makes little difference (there are judges who consider the launch a condition of the action), since what matters is that the complaint cannot be offered until there is a launch.

Crimes of social security contribution evasion:   Also in the case of crimes of withholding and evasion of social security contributions, case law requires that there be a definitive constitution of the credit for the filing of criminal action: “According to the understanding adopted by this Superior Court of Justice, the crimes of social security contribution evasion and social security misappropriation, as they are crimes of a material nature, are only configured after the definitive constitution, at the administrative level, of the exactions that are the object of the conducts.” (ROHC 2013/0285040-8 – STJ – Minister Jorge Mussi).

Tax crime and criminal non-prosecution agreement: The payment extinguishes the tax crime. If there is payment, no agreement is justified, as the offense is absent. But what if the debtor is unable to pay? Is your right to the agreement impaired? It doesn’t. The  caput  of article 28-A lists the conditions, alternative or cumulative, for the effectiveness of the agreement. Among them is repairing the damage or returning the thing to the victim,  except when it is impossible to do so.. If the investigated person is unable to pay the due tax, this condition cannot be demanded. It may happen that the investigated person is able to pay part of the tax due. We see no impediment for partial payment to be made, obviously with subsequent deduction of the total amount owed to the creditor.

Absence of just cause:  Item III was dispensable insofar as the lack of just cause falls within the concept of lack of interest in acting, a condition for the action contained in item II.

Video

Flavio Meirelles Medeiros: Nullities of the investigation leading to the illegality of the preventive measure and the suspension of the criminal action

Doctrine

Aury Lopes Jr. and Alexandre Morais da Rosa:  Discover the rhetorical pedaling of in dubio pro societate . Conjure

Alexandre Morais da Rosa:  Not to recognize early prescription in the crime is to throw money away . Conjure

Gustavo Badaró:  On the so-called “Final release of tax credit” and its effects on criminal proceedings for the crime of tax evasion . Badaro Lawyers.

Gustavo Badaró:  The conditions of penal action . Badaro Lawyers.

Jayme Walmer de Freitas:  Notes on retroactive prescription . jus.com.br.

Rogério Fernando Taffarelo: Legal uncertainty in tax and social security crimes and the role of the courts . Conjure

Raul Haidar:  We are still slaves to the tax authorities’ abuses, now watching the Coaf soap opera . Conjure

Raul Haidar:  There is no justice if the assessment of tax crimes is distorted . Conjure

Rui Haidar:  Crimes against the tax order: abuses and fantasies of the Tax Authorities . Conjure

Jurisprudence  

Lack of just cause and special court:  “The criminal complaint must be accompanied by a minimum evidentiary basis, that is, with a minimum evidential basis capable of demonstrating, even if in an evidentiary manner, the effective performance of the criminal offense by the defendant. In other words, the existence of a legitimizing support that reveals, in a satisfactory and consistent way, the materiality of the criminal fact and the existence of sufficient evidence of authorship of the crime, to support the accusation, in order to make it plausible, is imperative. Criminal imputation devoid of a suitable empirical basis is not admissible, which implies the absence of just cause to authorize the establishment of the  persecutio criminis in iudicio. In addition, even in infractions of lesser offensive potential under the rite of Law nº 9.099/95, it is necessary to analyze the just cause either in the complaint or in the criminal complaint, it is, therefore, a procedural assumption that must be investigated, in order to plan, by the magistrate, under penalty of rejection of the accusatory complaint ( Felix Fischer – STJ RHC 61822 / DF ). 

Typicality and just cause are sufficient :  The Judgment of receipt of the complaint is restricted to the description of the typical fact and the existence of just cause. (RCCR 9204358238, TRF-4th, Justice Ari Pargendler, DJU 20.4.93, p. 13.688). The judge cannot reject the complaint on the grounds that there was effective repentance or voluntary withdrawal. Only when the narrated fact does not constitute a crime, can the complaint be rejected (RJTJRS 79/102).  The doctrinal divergence on the typicality of the crime does not authorize the rejection of the complaint (RJTJRS 79/57).

Hungry theft :  It is possible to reject the complaint that describes theft committed in a state of necessity (RT 615/310).

Self-defence and admissibility of the action :  Self-defense cannot be examined in the admissibility judgment of the action (STJ – Plenary – DJU 08.06.92 – p. 8.594). In the same sense in relation to the prohibition error: TRF – 5th Region – DJU 10.04.92 – p. 8,976.

Absence of intent :  In the absence of intent, element of the type, the complaint must be rejected (RT 619/361).

Need for just cause (evidence):  To be valid, the complaint must be based on reasonable evidence. A typical fact description is not enough (RJTJRS 84/19, 105/200; RT 642/306, 644/272). It is void when it imputes criminal conduct other than the conduct (innocent in theory) portrayed by the inquiry (RJTJRS 98/32).

Lockdown and Criminal Action Allegation of lack of just cause. Examination of proof :  The granting of  habeas corpus  to suspend the criminal action is not possible, if the alleged lack of just cause does not prove to be indisputable, requiring in-depth proof (RHC 26721, STJ, Min. Flaquer Scartezzini, DJU 24.5.93, p. 10.011).

Termination of criminal proceedings. Allegations of lack of just cause and ineptitude of the complaint :  If the facts narrated in the complaint are, in theory, of criminal illegality, there is no mention of lack of just cause for the criminal action. The  habeas corpus  is not an ideal means for the in-depth examination of the evidence. Complaint that satisfactorily meets the requirements of article 41 of the CPP, with the information elements of the police investigation providing sufficient support for the accusatory version. Insubstance of the allegation of Ineptitude. (RHC 1500, STJ, Rapporteur Min. Costa Leite, DJU 6.4.92, p. 4.506).

Early recognition of retroactive statute of limitations :  The complaint may be rejected in view of the early recognition of retroactive statute of limitations considered as the prospective sentence (RT 668/288).

It is incumbent upon the Courts of Justice or Federal Regional Courts to judge requests for habeas corpus when the coercive authority is the Appellate Panel of Special Courts. Source: jurisprudence in theses (STJ).

Judgments:

RHC 030946/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 12/10/2013, DJE 02/03/2014

HC 223550/SP, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 03/27/2012, DJE 05/10/2012

HC 099878/PB, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 08/05/2010, DJE 08/23/2010

HC 122126/RS, Rel. Minister Og Fernandes, Sixth Panel, judged on 10/27/2009, DJE 11/16/2009

Monocratic Decisions

HC 314448/MS, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/07/2015, Published on 05/12/2015

HC 319326/RS, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 03/25/2015, Published on 03/30/2015

HC 263931/SP, Rel. Minister Rogerio Schietti Cruz, judged on 09/25/2013, Published on 10/01/2013

HC 195719/RJ, Rel. Minister Sebastião Reis Júnior, judged on 04/09/2013, Published on 04/12/2013

Fact prior to binding precedent n. 24:  Crime against the tax order. Binding Precedent n. 24. Typical fact prior to its edition. Incidence. Mere consolidation of lingering judicial interpretation. Initial term of the statute of limitations. Permanent Constitution of the tax credit. The Binding Precedent n. 24 applies to facts that occurred prior to its publication. (EREsp 1.318.662-PR, Judge Felix Fischer, unanimously, judged on 11/28/2018, DJe 12/04/2018).

Full attachment of the Tax Administrative Procedure is not necessary:  ​​For the initiation of the criminal action, proof of the definitive constitution of the tax credit is sufficient (Binding Precedent 24), and the full attachment of the corresponding Tax Administrative Procedure is unnecessary ( STJ, RHC 94.288-RJ, Rel. Justice Reynaldo Soares da Fonseca, unanimously, judged on 05/22/2018, DJe 05/30/2018 ).

Non-payment of ICMS: absence of contumacy in non-payment of ICMS in own operations leads to the recognition of the atypicality of the conduct ( AgRg in REsp 1.867.109-SC , Reporting Min. Laurita Vaz, Sixth Panel, unanimously, judged on 25/ 08/2020, DJe 09/04/2020).

Jurisprudence – statute of limitations

Recognition of prescription in perspective and general repercussion:  This Court, based on general repercussion, established the understanding that recognition of prescription in perspective (virtual, anticipated) is unfeasible – (RE 602.527 QO-RG, CEZAR PELUSO, DJe 12.18.2009) .

Constitutionality of art. 110, § 1, of the Penal Code. Initial term of prescription:  Art. 110, § 1, of the Penal Code (CP), as amended by Law 12.234/2010 ( HC 122.694/SP, rel. min. Dias Toffoli, judged on 12/10/2014, decision published in the DJE on 2/19 -2015  – Newsletter 771, Plenary).

Inadmissibility of prospective prescription:  The so-called prospective prescription is not allowed ( RHC 122.774, rel. min. Dias Toffoli, judgment on 5/19/2015, judgment published in the DJE of 6/11/2015  – Newsletter 786, First Panel) .

The interruption of the limitation period takes place on the date of the trial session and not the publication of the judgment:  The interruptive mark of the limitation period provided for in art. 117, IV1, of the Penal Code (even with the wording given to it by Law 11.596/2007) is the date of the trial session and not the publication of the judgment ( RHC 125.078, rel. min. Dias Toffoli, judgment on 3 -3-2015, judgment published in the DJE of 8-4-2015  – Bulletin 776, First Panel).

The extinction of punishment due to the prescription of the prospective punitive claim is inadmissible:  It is inadmissible to extinguish the punishability due to the prescription of the prospective punitive claim, including for military crimes ( HC 125.777, rel. min. Gilmar Mendes, judgment on 21 -6-2016, DJE of 8-1-2016  – Bulletin 831, Second Panel).

Subpoena for hearing and atypical fact: It constitutes an illegal constraint to be subpoenaed for a preliminary hearing to propose a criminal transaction, if the fact is atypical ( HC 86.162 , rel. min. Carlos Velloso, 2nd T).

Judicial measures against ineptitude

Rejection and non-receipt:  Rejection or non-receipt, it makes no difference. Usually it is said that the inept complaint is rejected and the null one is not received. But there is no extravagance if we talk about rejection of the null complaint and non-receipt of the inept one.

Effects of rejection and non-receipt:  What really matters, what is important to know is what are the effects of rejecting the complaint in case of acknowledgment of the lack of action condition and what are the effects in case of non-receipt of the complaint due to absence of representation, of requisition and on grounds of nullity of the complaint. 

Rejection of the complaint in the case of absence of condition of the action:  If the complaint is rejected due to lack of condition of the action, there is judgment on the merits. The action cannot be resubmitted. No exception. When the absence of an action condition is recognized, it is deciding, in other words, the impossibility of the existence of the right to punish. Once this impossibility has been decided, and judicially decided, there is no way to authorize, with a new criminal action, the reexamination of this decision. There is here the figure of material res judicata. Thus, if complaint Y based on investigation X imputes fact Z to person A and it is decided – by rejecting the final and unappealable complaint – that fact Z does not constitute a typical fact, the issue is definitively resolved. However, it should be noted that the possibility of a new complaint based on the same investigation is not disallowed, but due to another fact (this other typical one). This authorization does not imply that there was no judgment on the merits of the first action, does not imply that res judicata is not present (since there is res judicata in relation to fact Z). The same action (dealing with the same fact Z) cannot be proposed. Another action, dealing with another fact, can. Let us recall what identifies an action: request, cause of action and parties. If the cause of action is different – ​​if the imputed fact is different although based on the same investigation – it is not the same action. We gave above an example concerning the legal possibility of the request. Another example: if complaint Y, based on information X, imputes fact Z to the person of A and it is decided – upon rejection of the final and unappealable complaint – that information X does not contain sufficient evidentiary elements to support the criminal hypothesis; the question, here too, is definitely settled. But, please note, definitively resolved in relation to information X. If new evidence emerges, new action may be proposed. It’s just that the judgment on the merits was verified in relation to information X, not information X + N (and X is different from X + N). Likewise, if the Public Prosecutor’s Office, in a private action crime, offers a complaint that is rejected, nothing prevents the party from proposing further action by means of a complaint. This action proposed by the offended party is another action. It is not the same action that is repeated (even because this cannot be done, since there was a judgment on the merits), it is another action that is proposed (behold, the parties are different). offers a complaint that is rejected, nothing prevents the party from proposing further action through a complaint. This action proposed by the offended party is another action. It is not the same action that is repeated (even because this cannot be done, since there was a judgment on the merits), it is another action that is proposed (behold, the parties are different). offers a complaint that is rejected, nothing prevents the party from proposing further action through a complaint. This action proposed by the offended party is another action. It is not the same action that is repeated (even because this cannot be done, since there was a judgment on the merits), it is another action that is proposed (behold, the parties are different).

Rejection of the complaint in case of absence of representation or request:  The rejection of the complaint due to the absence of representation or request does not matter in judgment of the merits, not preventing, consequently, that the  same  action, satisfied the requirement, be proposed again. 

Rejection of the complaint in the case of its nullity:  If the complaint is null – because it lacks the existence requirement or essential formality – it must not be received or, what comes to the same thing, it must be rejected. The non-receipt of the null complaint does not matter in judgment on the merits. The  same  action may be proposed again by offering a new complaint. 

Recognition of the ineptitude of the complaint after it was received:  In the case of a judicial duty to ensure the regularity of the procedural relationship, there is no need to speak of estoppel. In order to maintain procedural integrity, the magistrate is authorized to go back as many times as necessary. If the complaint does not contain the exposition of the criminal fact or does so in a way that is too succinct to the point of not allowing the broad exercise of the defense, the inaugural piece must be considered as non-existent, since the exposition of the criminal fact constitutes a requirement for the existence of the process criminal. In this case, the process is null due to the absence of a complaint. And absolutely null ( article 563, item III, letter “a” of the CPP ). In this case, it is not an omission that can be corrected ( article 569), since it is not a mere omission of the complaint, but the lack of the piece itself. Therefore, there is no way to correct the complaint. Must be recognized as null. Once its nullity is recognized, the acts that depend on it, including the receipt order, are affected by the nullity, losing their validity. Therefore, one of the ways in which the ineptitude of the complaint is recognized after its receipt is with the recognition of the absolute nullity of the complaint. A new complaint must be offered. In the same way, lacking a condition for the action (legal possibility of the request, interest in acting or legitimacy), the judge can, of the two, either go back in order to reject the complaint or grant habeas  corpus ex officio with the aim of blocking the criminal action in view of the ineptitude of the complaint. If, after offering the prior defense, the magistrate is convinced that there is not enough evidence to support the complaint offered (and received), he may grant  habeas corpus craft. It matters little that upon receiving the complaint he understood that these probative elements were present. You may change your understanding when examining the prior defense. The magistrate is authorized to change his position, to redo procedural acts, all with a view to maintaining the regularity of the process and compliance with the general principles of law. It is perfectly understandable that in a given case the judge is convinced of the absence of just cause only after reading the prior defense, since until then all that counted for his conviction in terms of evidence was the police inquiry, a theoretically impartial procedure, but in practice, humanly partial. Humanly biased because carried out by investigators, and investigation, by its very nature and method, presupposes partiality. We are well accompanied. ex officio habeas corpus  to suspend the criminal action if these defects are identified (article 654, paragraph 2 of the CPP), interposing, in a continuous act, the necessary review (articles 574, I of 648, I of the CPP)”, (BOSCHI, José Antônio Paganella Criminal action, Rio de Janeiro, 1993, p. 161). 

Jurisprudence  

Rejection in the course of the process :  Once the complaint has been received, the decision cannot be subsequently reversed by the same instance (RJTJRS 87/60; STF – RT 230/146, 639/281; RTJ 69/369).

Receipt and rejection :  To reject the complaint, it must have been received beforehand (RJTJRS 87/90).

The appeal against the court decision

Appeal in the strict sense:  Against the decision that rejects the denouncement or complaint, an appeal in the strict sense can be made ( article 581, item I ). It should be noted that according to  STF Precedent 707 , the lack of subpoena of the accused to provide counter-arguments to the appeal filed against the rejection of the complaint is null and void, the appointment of a legal counsel does not replace it . On the subject, there is also  STF Precedent 709 :  Except when the lower court decision is void, the judgment that provides the appeal against the rejection of the complaint is valid, from the outset, for receiving it . In this way, with the publication of the decision granting the appeal, the prescription is interrupted ( article 117, item I, of the CP ).

Appropriable appeal in the special court:  In the special court, the appropriate appeal against the rejection of the complaint or complaint is the appeal, according to the wording of  article 82 of Law n. 9.099/95 :  The decision to reject the complaint or complaint and the sentence may be appealed, which may be judged by a panel composed of three Judges in exercise at the first level of jurisdiction, gathered at the seat of the Court.

Appeal against the decision receiving the complaint:  There is no legal provision for a specific appeal against the decision receiving the complaint. Habeas corpus can be filed  .

Receipt of the complaint in parts

Comments: There is nothing to prevent the partial rejection of the complaint. We could imagine an order of receipt in the following terms: “I reject the complaint in the part in which it imputes to the accused the omission of assistance, since it does not describe how this fact was verified (nullity). I also reject the part in which the defendant is accused of having driven the victim’s vehicle on a public road on a certain route, since such a statement does not constitute a crime (legal impossibility of the request). I also reject the part of the complaint that imputes the crime of personal injury to the passenger, since there is no evidence of the practice of this fact (lack of interest). Lastly, I reject the part of the complaint that imputes the crime of slander to the accused, since this is only done by means of a complaint (illegitimacy). As for the other articulated and imputed facts, 

Jurisprudence  

Partial receipt of the complaint :  The complaint cannot be received in parts (RT 685/363).

The complaint cannot be received and rejected in parts : The complaint is the act through which the Public Prosecutor notifies the occurrence of one or more criminal offenses and requests the initiation of criminal action. Therefore, it cannot be sectioned to be received and rejected in parts, especially in the case of a single accused. Possible omissions can be corrected at any time, before the final judgment. (HC 11600, STJ, Fifth Panel, Rapporteur Min. Costa Lima, DJU 1.6.92, p. 8.055).

Fim

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