Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 44 CPP – Complaint. Letter of attorney. Special powers. Public defender and dative

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Art. 44 . The complaint may be filed by a prosecutor with special powers, and the power of attorney must contain the name of the complainant and mention of the criminal fact, except when such clarifications depend on steps that must be previously requested in the criminal court. 

This video is repeated in articles 41, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, as it deals with all of them. Subjects: complaint, elements, power of attorney, indivisibility, waiver and pardon

Power of attorney for filing the complaint

Writing defect:  Where in Article 44 it is written  plaintiff ,  read  plaintiff .

Special powers:  In order to file a complaint in a private criminal action, the attorney must have special powers (the power of attorney must be given especially so that the person granted can file a criminal complaint), and the instrument must contain the name of the defendant and mention of the criminal fact. The special powers in the power of attorney are unnecessary if the plaintiff signs the criminal complaint. A power of attorney with the ad judicia clause  (for the forum in general) is not enough.

Public Defender and Attorney-at-Law:  A public defender is a lawyer who belongs to the Public Defender’s Office. He does not act with power of attorney. To file a complaint, he needs a power of attorney with special powers, or else the plaintiff must sign the petition. Dative lawyer is the one appointed by the magistrate. The dative, being appointed, to file a complaint, needs, like the public defender, either a power of attorney with special powers, or that the accused sign along with the complaint.

Only the lawyer can file a complaint in court:  The criminal complaint is a procedural document. It can only be received if it is signed by a lawyer, since a lawyer is essential for the administration of Justice ( article 133 of the CF ).

Mention of the fact:  The narrative of the fact in the power of attorney is waived, it is enough to mention it. 

Offer of complaint without power of attorney:  It is possible when for the purpose of avoiding decay. By analogy , article 104 of the Code of Civil Procedure applies  , according to which the lawyer will not be admitted to file a petition in court without a power of attorney, except to avoid preclusion, decay or prescription, or to perform an act considered urgent.

Remediation of the defect in the power of attorney:  The defect in the power of attorney can be remedied through ratification. For a current, ratification is only viable while the decay period has not elapsed. For another, the defect of the power of attorney may be corrected at any time before the final judgment ( article 569 ). 


No need for a narrative of the fact :  It suffices that the power of attorney contains the name of the defendant and the mention of the criminal fact. The law does not require, as to the fact, exposition, description or narrative, as when formalizing the complaint (TARS – RT 585/370). In the same sense: RT 631/384; RT 660/282.

Defect of the power of attorney :  It is only possible to remedy while the period of decay has not elapsed (RTJ 57/190). Cons: it is possible even after the expiry of the statute of limitations (RT 631/371).

Filing a complaint without a power of attorney :  It is lawful for the lawyer, on behalf of the plaintiff, to bring the criminal action, without prior power of attorney, in order to avoid the statute of limitations, being obliged, in this case, to display the power of attorney, within the period of the law . Analogous application of article 37 of the Code of Civil Procedure, in accordance with  article 3 of the Code of Criminal Procedure  (STJ – Plenary – DJU 09.03.92 – p. 2.526).

Nullity of criminal complaint due to lack of representation:  The criminal complaint filed by a lawyer substituted with reservation of rights by a prosecutor who had received from the plaintiff only the powers of the ad judicia et extra clause – powers for the forum in general – is null, even if the sub-establishment instrument has been added, by the sub-establishment, special powers for the filing of a private criminal action ( RHC 33.790-SP, original rapporteur Min. Maria Thereza De Assis Moura, rapporteur for Judgment Min. Sebastião Reis Júnior, judged on 27 /6/2014 – Newsletter nº 544 ).


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