Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 68º CPP – Offended poor.

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Art. 68. When the holder of the right to compensation for damage is poor (Article  32, §§ 1 and  2 ), the execution of the condemnatory sentence (Article 63) or the civil action (Article 64) will be promoted, at his/her request , by the Public Ministry.

The defense of poor people

Poor person: A person  who cannot cover the costs of the process is considered poor, without depriving himself or herself of essential resources for their own livelihood or that of their family. A certificate from the police authority in whose jurisdiction the victim resides is sufficient proof of poverty ( article 32, paragraphs 1 and 2 of the CPP ). Article  5, item LXXIV of the CF  provides that the State will provide full and free legal assistance to those who prove insufficient resources. 

Defense of the poor person in court by the Public Defender’s Office:  The defense of the poor person is no longer carried out by the Public Prosecutor’s Office. It is performed by the Public Defender. Only in those places where there is no Public Defender’s Office, the Public Prosecutor’s Office can – and should – act representing the poor person’s interests in the civil court. Article 134 of the  Federal Constitution establishes that the Public Defender’s Office is a permanent institution, incumbent on the judicial and extrajudicial defense of individual and collective rights, integrally and free of charge, to those in need, in the form of item LXXIV of article 5 of  this Federal Constitution l.  Complementary Law  n. 80, of January 12, 1994, organizes the Public Defender’s Office of the Union, the Federal District and the Territories and prescribes general norms for its organization in the States. Article  3  of that law deals with the objectives of the Public Defender’s Office. Article  4  deals with institutional functions, including providing legal guidance and defending those in need, at all levels. 

Public Prosecution Service as a procedural substitute:  Where the Public Defender’s Office has not yet arrived – and there are few of these places –, the Public Prosecutor’s Office must act seeking to repair the damage, when the holder of the right is poor, either through the execution of the condemnatory sentence (article 63 ), or with civil action ( article 64). There is no incompatibility between this article 68 and the Federal Constitution in places where the Public Defender’s Office has not arrived, since article 129, item IV of the CF establishes that it is the institutional function of the Public Ministry to exercise other functions that are conferred upon it, provided that they are compatible with its purpose. Prohibition of the MP only exists where the Ombudsman is already present and active, since the constitutional norm that confers the attribution of defense of the needy to this institution constitutes a special norm.

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