Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 414. Not being convinced of the materiality of the fact or the existence of sufficient evidence of authorship or participation, the judge, with good reason, will dismiss the accused. (Wording provided by Law No. 11,689, of 2008)
Sole paragraph. While the punishment is not extinguished, a new complaint or complaint may be made if there is new evidence. (Included by Law No. 11,689 of 2008)

Dismissal, grounds and appropriate appeal

The dismissal decision: Dismissal is a terminative mixed interlocutory decision. It puts an end to a phase of the process and extinguishes it without judging the merits. See heading Types of Decisions, in comments on Article 381 . It does not reject the punitive claim, but the right to accuse. There is no judgment on the merits.

Need for justification: As with any decision, the dismissal decision must be justified. Article  93, item IX of the CF , provides that “all judgments by the bodies of the Judiciary Power shall be public, and all decisions shall be substantiated, under penalty of nullity (…)”. Unlike pronunciation, the non-pronunciation can, in the motivation, deepen and exhaust the grounds, including because it is subject to appeal ( article 416 ), which can seek both the pronunciation and summary acquittal.

Appropriate appeal: Against the sentence of dismissal or summary acquittal, an appeal may be made ( article 416 ).

New process and related crimes

New process: Once the decision of dismissal is precluded, only with new evidence can a new process be started, with a new complaint or complaint. However, a new criminal action is prevented if the punishment is extinguished. Evidence must be formally and materially new. Their presentation needs to result in a new probative context, in a probability of the narrative different from the previous one that led to the dismissal. They need to authorize a new conviction tangent to the proof of materiality and evidence of authorship.

Related crimes: Once the dismissal is precluded, the records will be sent to the competent judge for the judgment of related crimes, if not the judge himself ( article 419 ).

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