Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 49 CPP – Extension of waiver.

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Art. 49. The waiver of the right of complaint, in relation to one of the  perpetrators of the crime, will be extended to all. 

https://www.youtube.com/embed/kLdz_xMubUo?feature=oembed
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.

Disclaimer regarding one of the authors

Consequence:  The waiver always takes place before the filing of the complaint in court. Once the waiver has been exercised, expressly or tacitly, in relation to one of the perpetrators of the crime, it extends to all the others.

Extinction of punishment:  The waiver of the right to complain extinguishes the punishment ( article 107, item V, of the CP ).

Timing:  The waiver of the right to file a complaint is appropriate before the filing of the criminal action. It finds provision in the  caput of article 104 of the CP , according to which,  the right of complaint cannot be exercised when waived .

Waiver in subsidiary private criminal action:  As  Article 104 of the CP  does not exempt, the waiver can be made both in the offended private criminal action and in the subsidiary private criminal action. It should be noted, however, that the resignation of the victim in the subsidiary action does not affect the right of the MP to file a complaint. 

Non-inclusion in the complaint of one of the perpetrators of the crime:  See subtitle  Complaint that violates the principle of indivisibility  in the title Complaint and indivisibility , in notes to article 48.

Receipt of compensation and waiver:  The fact that the victim receives compensation for the damage caused by the crime does not imply waiver ( article 104, sole paragraph of CP ). In the Special Court, in the case of a private initiative criminal action or a public criminal action subject to representation, on the other hand, the homologated agreement entails the waiver of the right of complaint or representation (article 74, sole paragraph of Law n. 9.099/ 1995 ).

Jurisprudence

In the case of a private criminal action, the request for the postponement of the trial must be considered:  In the case of a private criminal action, the request for the postponement of the trial must be considered, even in the face of the predictability of the supervenience of the extinction of the criminal liability due to the prescription of the punitive claim ( AP 584 QO /PR, rel. Dias Toffoli, judged on 10-4-2014, monocratic decision1 published in the DJE of 28-4-2014  – Newsletter 742, Plenary).

Applicability of the principle of indivisibility of private criminal action:  If the plaintiff proposes, in the criminal complaint itself, a civil composition of damages for part of the defendants, the accusatory piece must be rejected in its entirety – that is, in relation to all the defendants ( AP 724-DF, Reporting Minister Og Fernandes, judged on 8/20/2014 – Bulletin No. 547). 

Limit for the application of the principle of indivisibility of private criminal action:  The non-inclusion of any suspects in the criminal complaint does not constitute, in itself, a tacit waiver of the right to complain ( STJ, RHC 55.142-MG, Reporting Min. Felix Fischer, judged on 5/12/2015, DJe 5/21/2015 – Newsletter 562 ). 

The non-filing of a criminal complaint against all the alleged authors or participants in a  criminal practice implies the tacit waiver : , rel. min. Roberto Barroso, judgment on 2-2-2016, DJE of 4-26-2016  – Bulletin 813, First Panel).

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