Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 406. The judge, upon receiving the complaint or complaint, will 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. 11,689, of 2008)
§ 1 The   period provided for in the caput of this article will be counted from the effective fulfillment of the warrant or the appearance, in court, of the accused or appointed defender, in the case of invalid summons or by notice. (Wording provided by Law No. 11,689, of 2008)
§ 2 The   prosecution must list witnesses, up to a maximum of 8 (eight), in the complaint or complaint.
§ 3  In the answer, the accused will be able to argue preliminaries and allege everything that is of interest to his defense, offer documents and justifications, specify the intended evidence and enlist witnesses, up to a maximum of 8 (eight), qualifying them and requesting their subpoena, when necessary. (Included by Law No. 11,689 of 2008)

Jury Court and Federal Constitution

The institution of the jury is an ironclad clause: The institution of the jury finds constitutional provision in article 5, item XXXVIII of the CF, which addresses individual rights and guarantees. Pursuant to article 60, paragraph 4, item IV , the proposed amendment to the Constitution aimed at abolishing individual rights and guarantees cannot be the subject of a deliberation.

Jury guarantees: Pursuant to article 5, item XXXVIII, of the CF , the institution of the jury is recognized, with the organization that gives it by law, ensuring: a) the fullness of defense; b) the secrecy of the votes; c) the sovereignty of verdicts; d) competence for the trial of intentional crimes against life.

Full defense and irradiation from the beginning to the first phase of the procedure: Article 5 of the CF, in item LV , ensures full defense to the accused in general and, in item XXXVIII, guarantees full defenseto the accused before the jury. Full is more than broad. Soon, the constitutional requirement of defense is intensified in the jury. This fullness of defense that is required in the jury does not concern only the plenary phase. It also focuses on the first phase of the jury procedure. The reason for this is that the full defense in plenary becomes unfeasible if in the first phase of the procedure, when evidence is also collected, it is deficient. With regard to the defense in plenary, if it is deficient, there is a specific provision for the nullity of the trial, as can be seen from the reading of article 564, item III, letter “l” (see title Defense and prosecution in the trial session in comment to article 564). It is up to the judge, based on article 497, item V, terminate the trial, if the defense proves to be unsatisfactory, not making use of essential arguments and evidence that are available in the records, if the defender lacks technical preparation, if he demonstrates that he is unaware of the process, or even if he is unable to develop the theses due to lack of experience or nervousness. The judge may, in such cases, to avoid embarrassment, limit himself to declaring the trial closed, informing that the reasons for this decision will be explained later in a reasoned decision.

Secrecy of votes and intimate conviction: The vote of the juror, member of the Judgment Council, is secret. It is given in confidence. Secrecy results in the circumstance that the juror does not need to justify his decision. If you had to substantiate, either orally or in writing, even without identifying yourself, secrecy would not be fully assured. This system of judgment, in which the juror decides intimately, is called the system of intimate conviction. It means that the juror does not need to state the reasons for his decision. The juror decides according to his conscience, without having to base his decision on any other element other than his particular criteria. It is a different system from that which applies to judges based on the law, that of free conviction (about free conviction see Chapter 32, entitled Free Conviction , in ourBrief general theory of criminal procedure ), in which the judge must base his decision based on the existing evidence in the process.

Jury sovereignty. Meaning and implications:The sovereignty of the verdicts is foreseen in the title that deals with fundamental rights and guarantees. It must therefore be interpreted in favor of the individual. The sovereignty of the verdict was instituted in favor of the accused, not against him, or he would not be an individual guarantee. It must be examined from the perspective of the protection of the accused, not to support or make the jury’s decision irreplaceable, and even less to prohibit the substitution of the jury’s decision by another of the jury itself – a substitution that, by the way, confirms the competence of the jury. jury for the trial of intentional crimes against life. And there is one more important aspect with regard to the jury’s decision. The sovereignty of the jury’s decision is mitigated by the constitutional principle of the double degree of jurisdiction, that is to say, the legal provision for appeal reduces the rigidity of the jury’s verdict. article 5, item XXXVIII of the CF  and, in particular, the meaning of the sovereignty of the verdicts, some conclusions are reached: a) the sovereignty of the verdict is a fundamental guarantee of the accused; b) the mitigation of sovereignty by the constitutional rule of the double degree of jurisdiction; c) the right of the person accused of an intentional crime against life to be tried by a jury; d) if the accused’s proof of guilt (fault in the broad sense) is doubtful, the jury’s acquittal cannot be modified; e) if the proof of guilt is doubtful (fault in the broad sense), and if there is a conviction, the accused must be sent to a new jury (See subheading Conviction with doubtful evidence results in the accused’s right to a new trial by the jury under the heading Decisions of the Court of Justice Jury, in comments to article 593.

Jurisdiction of the Jury:

Competence to judge intentional crimes against life: It is the exclusive competence of the Jury Court to judge intentional crimes against life, consummated or attempted, stipulated in  articles 121 , §§ 1 and  2 , 122, sole paragraph, 123 , 124, 125, 126 and 127 of the Penal Code (intentional homicide, inducement, instigation or assistance by a third party to suicide, infanticide, abortion provoked by the pregnant woman or with her consent, abortion provoked by a third party without the consent of the pregnant woman, abortion provoked with the pregnant woman’s consent).

Federal Jury Court: See this subheading under the title Private Competence of the Jury Court, in comments to article 74.

Still on the jurisdiction of the Jury Court:  See the subheadings Minimum jurisdiction and related crimes , Jurisdiction of the Jury Court when the victim is a civilian and the accused is a state soldier , Jurisdiction for the trial of robbery , The Jury Court and the jurisdiction for prerogative of function , all in the title Jury Court , in comments to article 69 of the CPP.

Jury Court and related crimes:  According to item I of article 78 of the CPP, the special jurisdiction of the jury applies to common related or continental crimes. Thus, if the crime of rape, for example, is committed in connection with the crime of intentional homicide, the jury will have jurisdiction to try both offenses.

Court of the Jury and prerogative of function provided for in the State Constitution:  The forum by prerogative of function does not prevail over the competence of the Court of the Jury if the prerogative of function is established exclusively by the State Constitution. This is the statement of  Binding Precedent No. 45  of the STF : “The constitutional competence of the Jury Court prevails over the forum due to the prerogative of function established exclusively by the State Constitution” (see  debate that originated the Precedent  and  jurisprudence subsequent to the statement ). On this subject, see the title  The Court of Jury and the forum by prerogative of function ,  in comments to article 69 of the CPP.

Jury and function prerogative:  If a prosecutor is accused of intentional homicide in co-authorship with another person who does not have jurisdiction due to function prerogative, even with salute ( art. 77, item I ), the other person is sent to the jury. The prosecutor responds before the Court of Justice ( article 96, item III of the CF ). This is because the competence of the Jury’s Court, which is also constitutional ( article 5 , item XXXVIII, letter “d” of the CF ) must be safeguarded.

Biphasic procedure and complaint

Two-phase system: The jury procedure is two-phase. In the initial phase, which ends with the indictment, the viability of the charge is examined. In the second and last phase, the plenary of the jury, there is instruction, debates and judgment.

What is the Jury’s Court: The Jury’s Court, as well as the Special Courts, are organs of common justice, State Common Justice and Federal Justice.

Complaint requirements: See comments to Article 41 .

Requirements for denunciation, receipt, rejection, interruption and suspension of prescription: See this same title, in comments to article 396.

Rejection of the complaint or complaint: See comments to Article 395 .

Reasons for receiving or rejecting the complaint: See this same title , in comments on article 396.

The quote

Citation regulations: See  Articles 351 and following .

Citation by edict and suspension of the process: See comments to Article 366 .

The special subpoena of the accused located after citation by public notice: See this same title , in comments to article 396 .

the defense

The deadline for the defense: See this same title , in comments on Article 396 .

The period counts from the subpoena: The deadlines do not count from the date the subpoena is added to the records, but from the day of the effective subpoena. The wording of  Precedent 710 of the STF is in this sense :  In criminal proceedings, the deadlines are counted from the date of the subpoena, and not from the date attached to the writ or letter rogatory or order  (see  jurisprudence subsequent to the publication of the Precedent ). 

Untimely defense:  If the defense is presented after the period 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, 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.

The Defendant’s Response or Prior Defense: See this same heading, in comments to Article 396-A .

Number of witnesses: See comments to Article 401 .

Jury decision appeals

Appeal of Jury Court Decisions: See heading Jury Court Decisions, in comments to article 593.

Appeal for revision of a decision originating from the Jury Court: See this same subheading under the title New law, revision in execution, Jury and Special Courts, in comments to article 621.


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