Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 79 CPP – Unity and separation of processes.

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Art. 79. The connection and salute will imply unity of process and  judgment, except:
I – in the concurrence between common and military jurisdiction;
II — in the concurrence between the common jurisdiction and that of the juvenile court.
§ 1 o – In any case, the unity of the process  will cease, if, in relation to any co-defendant, the case provided for in article 152
survives  . cannot be judged by default, or the hypothesis of article 461 occurs.

Unity and separation of processes

Unity of Process and Judgment:  Connection and continence matter in unity of process and judgment. Separation is optional when there is an excessive number of accused and in order not to prolong their provisional arrest, or if for another relevant reason the judge deems the separation convenient (article 80 of the CPP). Notwithstanding the connection or continence, if different proceedings are instituted, the prevailing jurisdictional authority must recall the proceedings that are pending before the other judges, unless they already have a final sentence. In this case, the unity of the processes will only take place later, for the purpose of summing up or unifying the penalties (article 82 of the CPP).

Jurisprudence

Awarded collaboration and competence : Awarded collaboration, as a means of obtaining evidence, does not constitute a criterion for determining, modifying or concentrating competence. As a means of obtaining evidence, the facts reported in a plea bargain, when not connected with the object of the process that gave rise to the agreement, must receive the treatment given to the fortuitous meeting of evidence ( HC 181978 AgR/RJ, rel. Min. Gilmar Mendes, trial on 11/10/2020 ).

The exclusivism of the Military Justice and the Juvenile Court

Military Justice:  This does not judge related crimes of any other justice, not even the Common Justice. Article  79 of the CPP expressly makes an exception:  The connection and salute will imply unity of process and judgment, except: I – in the concurrence between common and military jurisdiction . In the same sense, the text of  article 102, letters “a” and “b”, of the CPPM  defines:  The connection and salute will determine the unity of the process, except: a) in the concurrence between military and common jurisdiction; b) in the concurrence between the military jurisdiction and that of the juvenile court . Consequently, in the face of the practice of a military offense connected with a common crime, the military offense is judged by the Military Justice, and the common one by the State Justice. On the subject, summarize the Precedent 90 of the STJ : “It is incumbent upon the State Military Court to prosecute and judge the military police for the commission of a military crime, and the Common Court for the commission of a common crime simultaneous to that”.

Exclusive jurisdiction of the Juvenile Court:  Minors are not subject to the jurisdiction of the Military, Electoral, Federal, State and Special Courts. The law that deals with children under the age of eighteen is the  Child and Adolescent Statute , Law No. 8069  , of July 13, 1990 . , belongs to the Judge of Childhood and Youth ( Article 146 ). See the heading “ Jurisdiction of the Juvenile Court ” in the comments to article 69.

Separate trial of accused

Mental illness of co-defendant:  The unity of the process ceases if the accused suffers mental illness, and the process must be suspended until his recovery ( article 152 of the CPP ), so that self-defense can be effectively exercised. Article 152 refers to mental illness arising after the commission of the crime; in case of pre-existing mental illness, the criminal and procedural consequences are different.

Separate trial in the Jury Court:  According to paragraph 2 of  article 79 of the CPP, if there is more than one accused, the trial may be carried out separately ( if there is a co-defendant who cannot be tried in absentia, or if there is a case of article 461 ). The text is out of date. The repealed articles 413 and 414 of the CPP required that the accused be personally notified of the sentence of indictment if the crime was non-bailable and determined the suspension of the process in relation to the one who was not summoned. Currently, the notice of the pronunciation decision can be made by public notice, in case the accused, being released, is not found ( article 420, sole paragraph ), and, as provided for in  article 457, the trial will not be postponed for the non-appearance of the released accused who has been duly summoned. However, there may be a separate trial when, due to the jurors’ refusals made by the defender, the minimum number of seven jurors is not obtained to compose the Judgment Council (article 469 of the CPP , which replaced article 461 of the CPP).

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