Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 73º CPP – Private action.

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Art. 73. In cases of exclusive private action, the plaintiff may  prefer the court of domicile or residence of the defendant, even when the place of the infraction is known.

Exclusive private action and option for the jurisdiction of the defendant’s domicile

Prevalence of private interest:  The criminal procedural legislator considered two reasons of public interest when opting for the jurisdiction of the place of the infraction as a general rule of competence: the proximity of the evidence, facilitating the search for the real truth, and the effectiveness of the jurisdiction’s response to the community affected by the crime. The action of private initiative is promoted upon complaint of the victim or of who has the capacity to represent him (article 100, paragraph 2 o CP), the principle of availability prevails here. The offended party decides whether or not to waive the right to file a complaint, whether or not to proceed with the process, causing peremption. Whether or not the defendant is forgiven (if forgiven, it only takes effect if the defendant agrees). In exclusive private action, private interest prevails. In this way, the legislator makes it possible for the plaintiff to choose the court of domicile or residence of the defendant, even when the place of the offense is known. How close the criminal instruction will be to the evidence and the imputed fact of the sentence concern the particular interest of the plaintiff, and, therefore, are at his free disposal.

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