Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 303º CPP – Flagrant and permanent infractions.

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Art. 303. In permanent infractions, the agent in flagrante delicto is understood as long as the permanence does not cease.

permanent crimes

Superfluous provision:  A permanent crime is one that extends over time. Now, as  item II of Article 302  establishes that the person committing the criminal offense is in flagrante delicto, Article 303 is superfluous. 

Instant and permanent crimes:  Instant crime is one whose consummation occurs in a given moment (example: theft). In the permanent, the consummating moment extends in time. In the instantaneous crime of permanent effects, the consummation takes place at a determined moment, but the result of the crime is permanent (example: homicide).

Examples of permanent crimes:  Examples of permanent crimes are concealment of a corpse, intentional reception, deposit, custody or transport of narcotics, reduction to a condition analogous to that of a slave, kidnapping, false imprisonment, violation of home, criminal association and extortion through kidnapping.

Home inviolability:  In the permanent crime, the inviolability of the home does not prevail, since, according to  article 5, item XI of the CF , the home is the individual’s inviolable asylum, no one being able to enter it without the consent of the resident, “except in the case of flagrante delicto ” or disaster, or to provide relief, or, during the day, by court order. In flagrante delicto, the presentation of a court order to enter the residence is waived.

Habitual crimes:  In habitual crimes, it is the reiteration of the act that constitutes typicality. One of the acts, isolated, is not typical, and, consequently, unfeasible is arrest in flagrante delicto. However, if the isolated act is accompanied by proof of habituality, the arrest is authorized.

Flagrant in habitual infractions:  There is a doctrinal understanding, with some support in the judgments, regarding the impossibility of arrest in flagrante delicto of someone who is committing a habitual infraction. In the usual infractions – ruffianism ( article 230 of the CP ), house of prostitution ( article 229 of the CP), for example – the type is built from multiple actions. It is argued, in these cases, that flagrance is a state that is divided into several actions, which take place in a reasonably long time; it is therefore impossible to arrest someone who commits a habitual offence. If the habitual criminal is arrested, the flagrante delicto will be limited to only one of the actions that make up the criminal type, and not the type. On the subject, Tourinho Filho announces the decision: “The flagrante delicto is not consistent with the nature of the misdemeanor of vagrancy, since this is characterized by habituality, and the arrest warrant, by its very definition, cannot portray an infraction of habit” (RT vol. 199/440). It is to be agreed that one of the acts, isolated, is not typical, and, consequently, impracticable is arrest in flagrante delicto. However, if the isolated act is accompanied by proof of habituality,

Jurisprudence

 Forced entry into a home without a court order is only licit if there are elements that indicate the commission of a crime: occurrence, inside the house, of a situation of flagrante delicto, under penalty of disciplinary, civil and criminal liability of the agent or authority, and nullity of the acts performed ( RE 603.616, rel. min. Gilmar Mendes, judgment on 4 and 5- 11-2015, ruling pending publication  – Newsletter 806, Plenary, General Repercussion).

Property without signs of habitation: There is no nullity in the search and seizure carried out by police, without a prior court order, in an apartment that does not reveal signs of habitation, not even temporarily or occasionally, if the apparent absence of residents in the place is combined with the founded suspicion that the property is used to commit a permanent crime ( HC 588.445-SC , Reporting Min. Reynaldo Soares da Fonseca, Fifth Panel, unanimously, judged on 08/25/2020, DJe 08/31/2020) .

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