Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 396 CPP – Receipt of the complaint and order of summons.

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Art. 396. In ordinary and summary proceedings, once the complaint or complaint is offered, the judge, if he does not reject it outright, will receive it and order the summons of the accused to respond to the accusation, in writing, within a period of 10 (ten) days (wording provided by Law No. 11,719 of 2008).
Single paragraph. In the case of citation by public notice, the term for the defense will begin to flow from the personal appearance of the accused or the appointed defender. (Wording provided 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, 

Reporting requirements, receipt, rejection, interruption and suspension of prescription

Interruption of prescription:  Receipt of the complaint interrupts the prescription under the terms of  article 177, item I, of the CP :   The course of the prescription is interrupted: I – by receipt of the complaint or complaint .

Service by edict and suspension of the process and prescription : In the case of service by edict, the process and the prescription are suspended. Urgent evidence can be produced in advance. This is the wording of  article 366 of the CPP :   If the accused, summoned by public notice, does not appear or appoint a lawyer, the process and the course of the statute of limitations will be suspended, and the judge may determine the anticipated production of evidence considered urgent and, if necessary, the case, decree preventive detention, pursuant to the provisions of article 312. Regarding the deadlines for suspending the process and the prescription, see the subtitle  Period for suspending the prescription  in the title Citation by public notice and suspension of the process and the prescription, in comments to article 366 .

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

Law n. 9.613/98 and laundering crimes:  Pursuant to  article 2, paragraph 2 of Law no. 9.613/98 , which deals with the crime of laundering or concealing assets, rights and values, article 366 of the CPP is not applicable to the prosecution of the offenses provided for therein. On this subject, see the title  Lei n. 9.613/98 and laundering crimes  in comments to article 366.

The defense term

How procedural deadlines start and run:  The way in which procedural deadlines run is regulated by  article 798 of the CPP . The starting day is not computed. It is not interrupted by vacations, holidays or Sundays. If the deadline ends on a Sunday or a public holiday, it is extended until the first working day. The deadlines do not count from the date the subpoena was added to the records, but from the day of the effective subpoena. In this sense, the wording of  Precedent 710 of the STF :  In criminal proceedings, deadlines are counted from the date of the subpoena, and not from the date attached to the writ or letter rogatory or order . Still on the beginning of the term, the  Precedent 310 of the STF : When the subpoena takes place on a Friday, or the publication with effect of subpoena is made on that day, the judicial period will start on the following Monday, unless there are no hours, in which case it will start on the first business day that follows. . 

Double deadlines for the Public Defender:  See  this same subtitle  in the title The Public Defender in notes to article 261.

Untimely defense:  If the defense is presented after the deadline of 10 (ten) days has passed, we see no reason for the magistrate not to receive it anyway. First, because the absence or lateness of the defense may lead to a deficiency in the defense, a possible cause of nullity, and it is up to the judge to maintain the regularity of the process. Two, due to the principle of due process. Three, because when no defense is presented, an “ad hoc” defender must be appointed to do so. Fourth, in view of the fact that it is the contradictory that enables the approximation of the real truth.

Place for delivery of the defense and letter rogatory:  Since the accused was summoned in another district by means of letter rogatory, the law does not clarify where he should file the defense. In the absence of regulation, you can deliver both at the deprecated judgment office and at the deprecant.

Inapplicability of article 396 to the summary procedure:  See title  Paragraph 4 of article 394  in comments to article 394.

Jurisprudence

Request for reconsideration does not suspend the deadline: Requests for reconsideration lack any support in the current procedural rules. They do not constitute resources, in the strict sense, or even atypical means of challenge. For this reason, they do not suspend deadlines nor prevent preclusion ( Rcl 43007 AgR/DF, rapporteur Min. Ricardo Lewandowski, judgment on 2.9.2021 ).

citation, procedures 

Citation regulations : See  Articles 351 and following .

Ordinary, summary and very summary procedures : See our notes to  article 394.

Appointment of defender: See comments on  Articles 261  (see titles The public defender, Effective defense),  263  (appointment of defender) and   264  (idem).

Jurisprudence

Absence of the defendant in the proceedings:  Even if the defendant has appointed a lawyer before the filing of the complaint – on the date of arrest in flagrante delicto – and the patron has acted, by determination of the Judge, throughout the criminal investigation, the criminal action is void who has convicted the defendant without his presence, who was not summoned or personally attended any act of the proceeding, with no unequivocal proof that he became aware of the complaint ( REsp 1.580.435-GO, Reporting Judge Rogerio Schietti Cruz, judged on 3/17/2016, DJe 3/31/2016 – Newsletter n. 580 ).

Grounds for receiving or rejecting the complaint

Grounds for receiving  the complaint:  In view of the provisions of  article 93, item IV, of the CF , which requires the reasoning of all judicial decisions under penalty of nullity, a statement of reasons is required for receiving the complaint. It can, however, be succinct. The understanding that this justification is unnecessary is mistaken. In addition to being a constitutional requirement, it is the right of the accused, who will undergo a lengthy, always embarrassing, criminal process, to know the reasons for convincing the judge to justify the initiation of criminal proceedings. Also for the reason that he may file for  habeas corpus aiming to stop the criminal action when there is no just cause, that is, when the criminal action is not based on sufficient information regarding authorship and materiality. The jurisprudence of the STF and STJ is mostly in the sense of the lack of justification. But there are already several rulings to the contrary, saying that a statement of reasons is required, although it may be succinct. We have no doubt that over time these last decisions will constitute majority, if not peaceful, jurisprudence, since, as we said, it is inadmissible for someone to respond to criminal proceedings, with all its hardships (representative of true punishment), without any justification justifying the criminal action. It is the citizen’s right to know the reasons for which the accusation was received in order to initiate criminal proceedings.

Grounds for rejecting the complaint:  The decision rejecting the complaint must be justified by the same reasons as the one receiving the complaint. Including because it can be appealed in the strict sense ( article 581, I ).

Jurisprudence

Receipt of the complaint. No need for justification :  It is not a decision-making act for the purposes of the  Federal Constitution, article 93, IX , the order that only receives the complaint or complaint, exempting the judge from justifying it (STJ – DJU 06. 04.92, p 4.504). The procedural law requires reasoning in the order that rejects the complaint or denouncement, remaining silent as to the rest. (CPP, article 516). It does not constitute a decision-making act for the purposes of the  Federal Constitution, article 93, IX , the order that only receives the complaint or complaint, therefore, the Judge is exempt from substantiating it (RHC 1427, STJ, Fifth Panel, Rapporteur Min. Edson Vidigal. DJU 6.4.92, p. 4504).

The special subpoena of the accused located after citation by public notice

Accused located after summons by public notice:  If the accused is found, dismiss his summons by warrant, given that he has already been summoned by public notice. What must be provided is your notification of the opening of the 10-day period to present your defense. The sole paragraph of article 296 applies to the species  , which says that  in the case of citation by public notice, the deadline for the defense will begin to flow from the personal appearance of the accused or the constituted defender. It should be noted that it is insufficient, and generates nullity, if the subpoena of the accused in this case is limited to saying that the deadline for offering the defense is open. Considering that citation by public notice is fictitious, and fictitious is what is imaginary, and also taking into account that the article 8, item 2, letter “b”, of the annex to the Pact of San José da Costa Rica , a norm hierarchically superior to the ordinary law, establishes as a judicial guarantee the  prior and detailed communication to the accused of the accusation formulated,  it is essential, under penalty of nullity, that the summons opening the period for the defense contain the same requirements foreseen for the citation, namely those of  articles 352  and  357 . Furthermore, the diction of  article 370 :  In subpoenas of the accused, witnesses and other persons who must be aware of any act, the provisions of the previous Chapter shall be observed, as applicable, (which contain the rules for the quote).

Jurisprudence

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 ).

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