Art. 415. The judge, with good reason, will immediately acquit the accused when: (Wording provided by Law No. 11,689, of 2008)
I – proven the non-existence of the fact; (Wording provided by Law No. 11,689, of 2008)
II – proven that he is not the author or participant in the fact; (Wording provided by Law No. 11,689 of 2008)
III – the fact does not constitute a criminal offence; (Wording provided by Law No. 11,689, of 2008)
IV – demonstrated cause for exemption from the penalty or exclusion of the crime. (Wording provided by Law No. 11,689, of 2008)
Sole paragraph. The provisions of item IV of the caput of this article do not apply to the case of non-imputability provided for in the caput of article 26 of Decree-Law no . 2,848, of December 7, 1940 – Penal Code, except when this is the only defensive thesis. (Included by Law No. 11,689 of 2008)
Summary acquittal. Assumptions
Summary acquittal: After the instruction of the first phase, if one of the causes of this device is proven, summary acquittal is due. The jurisdiction of the Jury Court is to judge crimes against life. If there is no crime , there is no jurisdiction of the jury and the judge must acquit. If there is doubt as to the existence of the fact, the correct measure is the indictment ( article 414 ). As for items II, III and IV, if there is doubt and not certainty, the decision must be based on the pronunciation.
Proof of the non-existence of the fact: When the non-existence of the fact described and imputed in the initial accusatory piece is proven, the accused must be acquitted. The crime is a typical, anti-juridical and culpable fact. Absent any one of these three elements, there is no crime. A typical fact is an action or conduct that fits within the description contained in the incriminating criminal law. Therefore, typicality presupposes law and fact. Proof of the non-existence of the fact excludes typicality. Absent the fact, typicality is not present.
Proof that the accused is not the perpetrator: If it is proven that the defendant did not contribute to the criminal offense, he must be acquitted.
Atypicality: When the fact does not constitute a crime, acquittal is required. When the complaint describes a typical fact, but, during the instruction, the evidence collected is convincing in the sense that the fact committed is not the one described in the initial accusation, but another one not provided for in any incriminating criminal law, acquittal is due.
Cause of exemption from penalty: These are the exclusions of culpability. Proved, acquittal is imposed. The following are excluded from culpability: error regarding the constitutive element of the legal type of crime; irresistible coercion or in strict obedience to the not manifestly illegal order of a hierarchical superior; error about the illegality of the fact, if unavoidable; criminal unimputability; complete intoxication, resulting from a fortuitous event or force majeure; and, furthermore, the supralegal exclusion consisting in the unenforceability of different conduct ( articles 20, 21, 22 , 26 and 28 , paragraph 1, of the CP).
Exclusionary cause of crime: The following constitute exclusions of unlawfulness: state of necessity; self-defense; strict compliance with legal duty; and regular exercise of rights ( article 23 of CP ).
Unimputability, related crimes and ex-officio appeal
Unimputability: If the defense supports any thesis (legitimate defense, for example) in favor of the unimputable, it must be forwarded to the jury. On the other hand, if the only defensive thesis is mental illness or incomplete or retarded mental development (article 26 of the CP), improper acquittal with the application of a security measure is appropriate. It should be noted that, although the judge must apply the security measure on the occasion of the improper acquittal sentence, the execution of the security measure only begins at the end of the process with the final and unappealable decision, according to article 171 of Law n . 7,210/84 (LEP): “Once the sentence that applies a security measure becomes final, the issuance of a guide for execution will be ordered”. The treatment given to the security measure cannot be different from that given to the penalty. Penalty is only executed with the final and unappealable decision, therefore, security measure as well. The person who cannot be held liable can only be taken to prison before the sentence becomes final for the same reasons that justify the preventive detention of the person liable. Still regarding the application of a security measure, the content of Precedent 525 of the STF : “The security measure will not be applied in the second instance, when only the defendant has appealed” (see jurisprudence subsequent to the publication of the Precedent ).
Related crime: In the face of summary acquittal for the intentional crime against life, if there is a related crime, and the judge is not competent for the trial, he will send the case to the judge who is competent (article 419 ) . The remittance should only be made after the final and unappealable decision regarding the intentional crime against life has become final, since, otherwise, conditions are created for the violation of the competence of the jury to judge the related crime (which would happen if the decision to be reversed on appeal).
Official appeal: The decision is subject to ex officio appeal, but only in that decision that excludes the crime or exempts the defendant from penalty. On the subject, see the subtitle Cases in which an ex-officio appeal is applicable under the heading Effects ex-officio appeal and admissibility judgment, in comments on Article 574 .
Ludmila Antunes Resende: Summary acquittal in the first phase of the jury . Legal Scope. This article proposes to analyze whether the changes made by Law 11689/2008, which included among the hypotheses of summary acquittal the competence to judge matters of fact, constitute unconstitutionality, given that the Federal Constitution attributed such competence to the Jury Court . This situation leads to many reflections about a possible affront to the constitutional norm, since there is the possibility for the judge to analyze the issue of merit – lack of fact and denial of authorship – in the first phase of the Jury procedure ( iudicim accusationis) in defiance of the Constitution, which determines that the Judgment Council has jurisdiction to judge intentional crimes against life.++
In the jury trial procedure, the judge may, at the stage of art. 415 of the CPP, carry out the improper acquittal of the unimputable accused: In the procedure of the jury trial, the judge may, in the phase of art. 415 of the CPP, carry out the improper acquittal of the unimputable accused, in the event that, in addition to the thesis of unimputability, the defense only sustains through generic allegations that there is no proof of the defendant’s guilt and intent in the case file, without any exposition of the foundations that would support this thesis ( REsp 39.920-RJ, Justice Jorge Mussi, judged on 6/2/2014 – Newsletter nº 535 ). IMPROPER ABSOLITION IN ARTICLE 415