Art. 1 The criminal procedure shall be governed, throughout the Brazilian territory, by this Code, with the following exceptions:
I – treaties, conventions and rules of international law;
II – the constitutional prerogatives of the President of the Republic, of the ministers of State, in crimes connected with those of the President of the Republic, and of the ministers of the Federal Supreme Court, in crimes of responsibility (Constitution, articles 86, 89, § 2 , and 100);
III – processes within the competence of the Military Justice;
IV – cases within the jurisdiction of the special court (Constitution, article 122, n . 17);
V – prosecutions for press crimes. (See ADPF No. 130)
Single paragraph. However, this Code will apply to the processes referred to in nos . IV and V, when the special laws that regulate them do not provide otherwise.
The CPP – doctrine, history, comparative law and general topics
Being old doesn’t mean being bad. It is not uncommon for the opposite: Mougenot was very happy to say that one of the easiest and least scientific criticisms to be made of a law is that it is old (BONFIM, Edilson Mougenot. Code of Penal Process Annotated. 4th. ed. Editora Saraiva : 2012, p. 770). Well, if a law lasts for many years, it’s not because it’s bad, it’s because, on the contrary, it’s good. It is wrong to say that the current CPP is outdated on the grounds that it came into force in the distant year of 1942. The Spanish Ley de Enjuiciamiento Criminal was published in 1882 and remains in force. Nor is national codification a patchwork, as some writers suggest. There is logic, system and organicity in it. The criminal procedure code has, over the years, been modified, adapting to new times and new realities. Its improvement has been constant. It is not an outdated text, although it needs some changes, especially in the appeal part – which does not seem to us a difficult task –, and the express revocation of some devices that are already tacitly revoked.
Doctrine
Afrânio Silva Jardim: The North American influence on Latin criminal procedural systems – by Afrânio Silva Jardim . Emporium of Law.
Afrânio Silva Jardim: Two texts against the undue and inconvenient importation of North American criminal procedural institutes. . Emporium of law.
Ada Pellegrini Grinover: The model code of criminal procedure for Ibero-America 10 years later. magazines.pucp.edu.pe.
Alexandre de Moraes: The Indispensable Contribution of José Celso de Mello Filho to the Effectiveness of the Brazilian Constitutional Jurisdiction in Defense of Fundamental Rights .
André Luís Callegari: Uruguayan Preliminary Investigation System: A Brief Legal Exposition . Conjure
André Luis Alves de Melo: Flexibilization of penal action for minor crimes in Europe and rigor in Brazil . Conjure
Augusto Silva Dias: What criminal law do we Europeans need? A look at some recent proposals for the constitution of a community criminal law . revista.lis.ulusiada.pt . 2006.
Aury Lopes Jr: General Theory of the Process is harmful for the good health of the Criminal Procedure . Conjure
Aury Lopes Jr. and Tiago Bunning Mendes: Application of the new Code of Civil Procedure to criminal proceedings . Conjure
Aury Lopes Jr and Alexandre Morais da Rosa: New Code of Criminal Procedure is necessary, but not just any . Conjure
Celso Limongi. The New Civil Procedure Code and its influence on criminal procedure . Crumbs.
Henrique Bonatti Rego Barbosa: The teaching of law in Brazil and Portugal and its consequences: a comparative analysis of the contemporary scenario . repository.ul.pt.
Igor Vieira Rios Amorim Farias: The complementarity regime in the international criminal court . repository.ul.pt
Inês Miguel Rodrigues de Azevedo Nunes Pires: The Criminal Law of the European Union . repository.ul.pt.
Laís Menna Barreto de Azevedo Silveira : Application of the new Code of Civil Procedure to criminal proceedings . Conjure
Luiz Flávio Gomes: Penal reform repeats common punitive populism in Brazil . Conjure
Marcelo Galli: Code of Criminal Procedure has become legal Frankenstein, says lawyer . Conjure
Marco Aurélio Nunes da Silveira: The Current Inquisitorial Culture and the Authoritarian Origin of the Brazilian Code of Criminal Procedure . emerj.tjrj.jus.br .
Reinéro Antonio Lérias: Criminal procedure and human rights under the shackles of our inquisitorial past . scholar.google.com.br.
Renata Moura Tupinambá: The pillars of the 1941 Criminal Procedure Code and its incompatibility with the 1988 Federal Constitution . Legal Scope.
Rômulo de Andrade Moreira: Criminal procedural reforms in Latin America – the vision of Alberto Binder . Crumbs.
Rômulo de Andrade Moreira: New Uruguayan CPP changed from inquisitorial to accusatory system . Conjure
Rômulo de Andrade Moreira: The role of the MP in the prosecution system – A view from the Chilean experience . Jusbrasil.
Sílvio César Arouck Gemaque: The necessary influence of international criminal procedure on Brazilian criminal procedure . jf.jus.br.
Rômulo de Andrade Moreira: What we have to learn from Uruguay’s criminal procedural system . Conjure
Vladimir Passos de Freitas: The judicial system in India, a mysterious and fascinating country . Conjure
Principle of territoriality, due process and territory
Principle of territoriality: The criminal procedural rule is governed by the principle of territoriality. The Code of Criminal Procedure applies throughout the national territory. The application of a foreign criminal procedural norm in Brazilian territory or a Brazilian criminal procedural norm in foreign territory constitute exceptionalities. The rule is that procedural rule is applied in the territory where the country that produced it has sovereignty. For this reason, compliance in Brazil with a rogatory letter (article 784, paragraph 1) and ratification of a foreign judgment ( article 787), as examples, follow Brazilian procedural rules. On the other hand, with regard to criminal law, it can be applied outside Brazilian territory to crimes committed abroad. Crimes committed abroad that are subject to Brazilian law are described in Article 7 of the Penal Code . On the subject, see our comments on article 88 et seq.
Principle of due process: When the present legal provision says in the caput that the criminal procedure will be governed … by this Code , it is ratifying the constitutional principle of due process inserted in the Federal Constitution in article 5, item LIV , according to which no one shall be deprived of liberty or property without due process of law .
Brazilian territory: The territory covers land, river, sea and air spaces. Airspace is regulated by Law n. 7.565/86 , and the territorial sea by Law n. 8,617/93 . On territoriality and extraterritoriality of criminal law, see articles 5 and 7 of the Penal Code and our comments on article 88 and following.
Brazilian territorial sea: Pursuant to Law No. 8617 , of January 4, 1993 , the Brazilian territorial sea comprises a strip of twelve nautical miles wide, measured from the low-water line of the continental and island coastline, as indicated on large-scale nautical charts, officially recognized in Brazil.
Doctrine
Ana Carollina do Carmo Rodrigues and Carolina Rocha Salviano de Faria: Criminal law in space: principle of territoriality, extraterritoriality, extradition and effectiveness of foreign sentence applied in Brazil . revista.unifenas.br.
Geraldo Assunção Alves de Brito and Júlio Zini: Application of the principle of extraterritoriality in crimes of pedophilia . npa.newtonpaiva.br.
Jurisprudence – Extradition
Extradition and failure by the requesting State to produce the required documentation: The requesting State’s failure to produce the required documentation based on an extradition treaty signed with the Federative Republic of Brazil (PPE 730) leads to the declaration of extinction of the request for pre-trial detention for extradition purposes . QO/DF, rel. Min. Celso de Mello, judged on 16-12-2014, judgment published in the DJE of 26-2-2015 – Newsletter 772, Plenary).
Extradition and the principle of dual typicality: Given the requirement to comply with the principle of double typicality, extradition is impossible if the conduct, at the time it was carried out, does not have criminal typicality in the positive Brazilian legal system ( PPE 732 QO/DF, rel Min. Celso de Mello, judged on 11-11-2014, judgment published in the DJE of 2-2-2015 – Bulletin 767, Second Panel).
The bilateral extradition treaty is a special law in the face of domestic legislation: The bilateral extradition treaty is a special law in the face of national domestic legislation, which gives it legal precedence over the Foreigner Statute in cases of omission or antinomy. Therefore, if extradition is inadmissible in this case, precautionary arrest for this purpose will also be infeasible ( PPE 732 QO/DF, rel. min. Celso de Mello, judged on 11-11-2014, judgment published in the DJE of 2-2- 2015 – Bulletin 767, Second Panel).
Feasibility of the request for precautionary arrest made by Interpol: The request for precautionary arrest which, although not carried out by a foreign State, has been formulated by Interpol ( PPE 732 QO/DF, rel. min. Celso de Mello, judged in 11-11-2014, judgment published in the DJE of 2-2-2015 – Newsletter 767, Second Panel).
Extradition. Condition that the requesting State converts a possible sentence of life imprisonment into a prison term of up to 30 years: The request for extradition must be granted on condition that the requesting State assumes, in a formal manner, before handing over the extradited person to its custody , the commitment to commute any possible sentence of imprisonment or life imprisonment for custodial sentences with a maximum term of execution not exceeding thirty years ( Ext 1.234 Extn-Segunda/Italian Republic, rel. min. Dias Toffoli, judged on 9-30- 2014, judgment published in the DJE of 12/19/2014 – Newsletter 761, First Panel).
It is not possible to renew, in an extradition action, the reexamination of the evidence or the merits of the decision rendered by the foreign State: passive brought before the Court, the criminal litigation that gave rise to it, nor that the reexamination of the evidence or the discussion on the merits of the accusation or the conviction emanating from the competent body of the foreign State is carried out, since the system of limited litigation is adopted ( Ext 1.254/Romania, rel. Min. Teori Zavascki, judged on 4/29/2014, judgment published in the DJE of 10/30/2014 – Newsletter 744, Second Panel).
Material limitations on the exercise of the right of defense by the extradited person: The special nature of the extradition process imposes material limitations on the exercise of the right of defense by the extradited person, which can only raise thematic issues associated with (a) the identity of the person sought, (b) the defect in the form of the documents presented and/or (c) the illegality of the extradition ( Ext 1.254/Romania, rel. min. Teori Zavascki, judged on 29-4-2014, judgment published in the DJE of 30-10-2014 – Informativo 744, Second Panel).
Extradition. Preference of the requesting State. Miscellaneous crimes: The preference granted to the first State requesting the extradited person does not inhibit the claim of another State to claim the right to custody of the same person, when the crimes are different ( Ext 1.276/DF, rel. min. Gilmar Mendes, judged on 25 -3-2014, decision published in the DJE of 22-5-2014 – Bulletin 740, Second Panel).
Non-retroactivity of norms and seniority list: The principle of non-retroactivity of norms and that of legal certainty, in its subjective dimension densified by the principle of protection of trust, prevents subsequent norms setting new tie-breaking criteria between judges from producing retroactive effects capable of deconstituting list of seniority already published and in force for several years ( MS 28.494/MT, rel. Min. Luiz Fux, judged on 2-9-2014, decision published in the DJE of 17-9-2014 – Informativo 757, First Panel).
Supplementary extradition: If a complaint is filed by the Public Ministry for a previous fact and not contained in the extradition request of the person delivered, the corresponding criminal action must be suspended until the request for supplementary extradition is judged, under the terms of art. 14 of Decree 4.975/2004 (Agreement on Extradition between States Parties to Mercosur) ( STJ, RHC 45.569-MT, Justice Rel. Felix Fischer, judged on 8/4/2015, DJe 8/12/2015 – Newsletter 566 ).
State law cannot deal with the admissibility of appeals: State law dealing with admissibility of appeals violates the exclusive competence of the Union to legislate on procedural law ( ADI 4.161/AL, rel. min. Cármen Lúcia, judged on 10-30-2014, judgment published in the DJE of 10-2-2015 – Newsletter 765, Plenary).
Extradition request requirements must be verified at the trial date: Extradition request requirements must be verified at the trial date. Therefore, it is impossible to anticipate the occurrence of supervening facts for the purpose of denying the request ( Ext 1.375 ED, rel. min. Luiz Fux, judgment on 11/24/2015, judgment published in the DJE of 3/31/2016 – Newsletter 809, First Class).
Extradition and the minimum sentence to be served in the requesting country: The effective removal of the foreigner from national territory is subject to compliance with extradition requirements, notably the minimum balance of sentence to be served in the requesting country ( Ext 1.375 ED, rel. Min. Luiz Fux, judgment on 11-24-2015, judgment published in the DJE of 3-31-2016 – Bulletin 809, First Panel).
Delivery of the foreign subject. Mercosur. Balance of sentence to be served for less than six months: The foreign subject is not handed over to the State Party of Mercosur for execution of the sentence when the sentence still to be served in the requesting State is less than six months ( Ext 1.394, rel. min. Teori Zavascki, judgment on 20-10-2015, judgment published in the DJE of 5-11-2015 – Bulletin 804, Second Panel).
Possibility of converting the penalty of a fine into imprisonment provided for in the legal system of the requesting State does not preclude extradition : although prohibited in Brazil ( Ext 1.375, rel. Luiz Fux, judgment on 8/25/2015, judgment published in the DJE of 10/15/2015 – Newsletter 796, First Panel).
Removal of the juris tantum presumption of veracity of the Brazilian registration act and extradition: The removal of the juris tantum presumption of veracity of the Brazilian registration act, even if by provisional decision, combined with the robustness of the evidence of the condition of foreigner, does not violate the constitutional principle that prohibits the extradition of a native Brazilian. Therefore, there is no obstacle to examining the merits of the extradition ( Ext 1.393, rel. Min. Dias Toffoli, judgment on 8/25/2015, judgment published in the DJE of 9/10/2015 – Newsletter 796, Second Panel).
Extradition and non-existence of any legal cause that extinguishes the punishability: For the purposes of extradition, it is necessary to meet the requirement of double criminality, consisting of the absence of any legal cause that extinguishes the punishability, notably, the statute of limitations, either under the terms of Brazilian law , or those of the positive order of the requesting State ( Ext 1.324, rel. Min. Dias Toffoli, judgment on 7-4-2015, judgment published in the DJE of 4-5-2015 – Newsletter 780, Second Panel).
Imprisonment for criminal execution and for extradition. Adaptation of the prison for extradition to the conditions of the semi-open regime: In case of overlapping prison titles, for criminal execution and for extradition, it is possible to grant the adaptation of the prison for extradition to the conditions of the semi-open regime reached by the convict in the course of the execution ( Ext 893 QO, rel. Min. Gilmar Mendes, judgment on 3/10/2015, judgment published in the DJE of 5/15/2015 – Newsletter 777, Second Panel).
Consent of the extradited person: The consent of the extradited person with the request of the requesting State may have legal effects for the purpose of granting the extradition, provided that this possibility is provided for in a relevant conventional rule and complies with the required formalities ( Ext 1.476 QO, rel. min. Celso de Mello, DJE of 20-10-2017 ).
Receipt of the extradition request and prescription : Receipt of the extradition request does not constitute an interruptive cause for the prescription of the enforceable claim, unless expressly provided for in a specific treaty (Ext 1.346 ED, rel. min. Dias Toffoli, DJE of 10-13-2017) .
Pretrial detention for extradition and interruption of the statute of limitations: Pretrial detention for the purpose of enforceable extradition does not constitute an interruptive cause of the statute of limitations for the requesting State’s enforceable claim (Ext 1.346 ED, rel. min. Dias Toffoli, DJE of 10-13-2017).
Extradition of those who no longer hold Brazilian nationality: Those who no longer hold Brazilian nationality, for having acquired another nationality in a situation that is not subject to the exceptions provided for in art. 12, § 4, of the Federal Constitution (CF)1, can be extradited by Brazil ( Ext 1,462 rel. min. Roberto Barroso 1st Panel DJE of 29-6-2017 Informativo STF 859 ).
Crime committed abroad and refusal of extradition: It is incumbent upon the Federal Court to process and judge the criminal action that deals with a crime committed abroad that has been transferred to Brazilian jurisdiction, due to refusal of extradition ( CC 154.656-MG, Rapporteur Min. . Ribeiro Dantas, unanimously, judged on 04/25/2018, DJe 05/03/2018 ).
Extension in cases in which extradition has already been granted: A request for an extension or expansion is allowed in cases in which extradition has already been granted, provided that the formalities in respect of the right of the foreign subject are observed ( Ext 1.363 Extn, rel. min. Alexandre de Moraes, DJE of 1-3-2019 ).
Exceptions to the principle of territoriality
Application of the Brazilian criminal procedural law abroad: The Brazilian procedural law is applied abroad in the following cases: 1 – in territory without sovereignty; 2 – in territory that authorizes Brazilian sovereignty; 3 – in occupied territory during wartime.
Vienna Convention on Diplomatic Relations: It was promulgated by Decree 56.435/65 . Pursuant to Article 31 of the said international agreement, the diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
Vienna Convention on Consular Relations: Promulgated by Decree n. 61,078/67 . Pursuant to Article 43, paragraph 1, consular officials and consular employees are not subject to the jurisdiction of the judicial and administrative authorities of the receiving State for acts performed in the exercise of consular functions.
International Criminal Court: Pursuant to paragraph 4 of article 5 of the Federal Constitution , included by Constitutional Amendment No. 45 of 2004 , Brazil submits itself to the jurisdiction of the International Criminal Court to whose creation it has manifested adherence . Legislative Decree n. 112/2002 approved the text of the Rome Statute of the International Criminal Court, approved on July 17, 1998 and signed by Brazil on February 7, 2000. Decree 4.388 /2002of the President of the Republic promulgated the Rome Statute of the International Criminal Court. The Court’s competence is restricted to the most serious crimes, which affect the international community as a whole. The Court is competent to judge the following crimes: a) the crime of genocide; b) crimes against humanity; c) war crimes; d) crime of aggression.
Jurisprudence
Fixed precautionary measure preventing a diplomatic agent from leaving the country: The fixed precautionary measure prohibiting a diplomatic agent accused of murder from leaving the country without judicial authorization is not adequate in the event that the defendant’s State of origin has waived immunity from cognitive jurisdiction, but retain competence to comply with any criminal penalty imposed on him ( RHC 87.825-ES, Reporting Min. Nefi Cordeiro, unanimously, judged on 12/05/2017, DJe 12/14/2017 – Newsletter 618 ).
Treaties, conventions, monism, dualism, entry into the legal order
Distinction between treaty and convention: The doctrine tries to distinguish treaty from convention. Various criteria are proposed. There is no understanding. None are convincing. There is no clear distinction.
Monist and dualist theories: For the dualist theory, the international legal order is distinct from the national one. For the dualists, the international rule depends on the law to enter the national order. For the monist theory, international agreements enter the internal order regardless of law.
Constitutional procedure for entering the legal order: It is exclusively up to the President of the Republic to sign international treaties, conventions and acts. This exclusive initiative of the President is subject to a referendum by the National Congress ( article 84, item VIII of the CF ). It is the exclusive competence of the National Congress to decide definitively on treaties, agreements or international acts that entail burdensome burdens or commitments to the national heritage ( article 49, item I of CF). In short: the person who signs the convention is the President of the Republic. But it’s not enough. It then needs to be approved by Congress. It is for this reason that the signing of the convention or treaty is followed by the legislative decree approving the act and the presidential decree effecting its enactment (declaring the existence of the agreement and ordering its execution).
Treaty and permissibility of extraordinary appeal: Extraordinary appeal may be filed with the Federal Supreme Court in cases decided in the sole or final instance when the contested decision declares the treaty unconstitutional ( article 102, item III, letter “b” of the CF ).
Doctrine
André Carneiro Leão: International transfer of convicted persons as a result of the principle of human dignity: an analysis based on the Brazilian case . repositorio.ufpe.br .
Alexandre de Moraes: STF and requests for international cooperation in criminal matters .
Anna Mayra Araújo Teófilo and Rômulo Rhemo Palitot Braga: International criminal cooperation in money laundering crimes . publicadireito.com.br.
Aury Lopes Jr and Alexandre Morais da Rosa: One of the topics you need to know for criminal proceedings in 2015 .Conjur.
Cláudio Macedo de Souza: International criminal cooperation: a methodology based on the definition of transnational organized crime . Brazilian Journal of International Law.
Fernando Augusto Fernandes: Some criminal aspects of asset repatriation . ffernandes.adv.br
Fillipe Azevedo Rodrigues and Kathy Aline de Medeiros Silva: International legal cooperation in criminal matters and the effectiveness of criminal protection in economic systems . publicadireito.com.br.
Gerson Faustino Rosa : International Criminal Court and its repercussion in the national legal system . intertemas.toledoprudente.edu.br.
Henrique Guerra Tavares Gomes: The question of the imprescriptibility of criminal procedure in international law . estudiogeral.sib.uc.pt.
Joselito de Araujo Sousa: Faces of international cooperation in the federal police . University of Brasilia. bdm.unb.br/bitstream .
Lucas Tavares Mourão and Jamile Bergamaschine Mata Says: Criminal judicial cooperation and regional integration: normative and institutional treatment in the European Union and Mercosur. periodicos.unichristus.edu.br.
Luciano Monti Favaro and Marcos Aurélio Pereira Valadão: The 1969 Vienna Convention on the Law of Treaties and the reason for its non-ratification by the Federative Republic of Brazil: a constitutional problem? publicadireito.com.br.
Maria Ivonete Vale Nitão: The realization of international cooperation in Brazilian criminal law . Law and Freedom.
Manuel Monteiro Guedes Valente: Judicial cooperation in criminal matters in the context of terrorism . revistaeletronicas.pucrs.br.
Marcos de Vasconcellos: It’s time to recognize the constitutional value of human rights treaties, says Fachin . Conjure
Renata de Farias Falangola: International refugee law and the Brazilian and Portuguese legal systems: an analysis of the effectiveness of protection . repository.ul.pt.
Rodrigo de Bittencourt Mudrovitsch and Luíza Rocha Jacobsen: The transfer of criminal proceedings and the consolidation of international cooperation .Conjur.
Renata Costa Silva Brandão: International Criminal Court: a new reality of International Criminal Law to guarantee the security of Human Rights . dhnet.org.br .
Sérgio Henriques Zandona Freitas, Gristianne Pimenta Reis, Laura Nery Campos Rodrigues, Mariana Silva Bastos de Sena, Matheus de Araújo Alves and Sofia Moreira Martins: Interpol and the fight against transnational crimes . defense.gov.br.
Thiago Augusto Rosa da Silva: The international context of the crime of money laundering and stricto sensu legal cooperation between nations . ajufesc.org.br.
Vladimir Aras: The Phantom Norm of Article 47 of the Mérida Convention . jus.com.br.
Vladimir Aras: International Criminal Cooperation . vladimiraras.blog.
Vladimir Aras. Money laundering, criminal organizations and the concept of the Palermo Convention . jus.com.br.
Wilson Mendonça Alves and Marcelo Fernando Quiroga Obregon: International cooperation agreements in the fight against corruption within the scope of the Lava Jato operation . Legal Scope.
Jurisprudence
Sharing of evidence due to an international cooperation agreement: There is no illegality in the use, in ongoing criminal proceedings in Brazil, of information shared pursuant to an international cooperation agreement in criminal matters and arising from breach of bank secrecy determined by a foreign authority, with support in the legal system of his country, for the investigation of other criminal facts that occurred there, even if there is no previous decision of the Brazilian justice authorizing the breach of secrecy ( STJ, HC 231.633- PR, Reporting Justice Jorge Mussi, judged in 11/25/2014, DJe 12/3/2014 – Newsletter 553 ).
The problem of hierarchy and human rights conventions
Conventions and hierarchy: The national legal order, except for the case of article 5, paragraph 3 of the CF, which deals with human rights conventions, is silent in regulating the hierarchical position of the norms of international agreements in relation to domestic law. Jurisprudence has established itself in the sense that: – agreed norms enter the same hierarchical level as ordinary laws; – in the case of conflict between the internal norm and the agreed norm, the most recent one prevails. It seems to us that this second postulate is in disagreement with article 27 of the Vienna Convention on the Law of Treaties, enacted by Decree n. 7.030/2009 , according to which a party cannot invoke the provisions of its domestic law to justify the non-compliance with a treaty. Article 27 of the Convention on Treaties prohibits the invocation of domestic law.
Treaties that deal with human rights and which are equivalent to constitutional amendments: The international treaties and conventions on human rights that are approved, in each House of the National Congress, in two shifts, by three-fifths of the votes of the respective members, are hierarchically equivalent to the constitutional amendments. This is what is provided for in paragraph 3 of article 5 of the Federal Constitution, included in Constitutional Amendment No. 45/2004 .
People with disabilities, blind people and constitutional guarantees: Decree 6949/2009 enacted the International Convention on the Rights of People with Disabilities. It was agreed in New York on March 30, 2007. Decree 9522/2018 , in turn, enacted the Treaty of Marrakesh to facilitate access to published works for blind and visually impaired people. It was signed in Marrakesh, on June 27, 2013. Both international documents were approved, in each House of the National Congress, in two shifts, by three-fifths of the votes of the respective members. Its norms are equivalent, consequently, to constitutional amendments.
Treaties dealing with human rights and which are supralegal: Under the terms of article 5, paragraph 2 of the CF , the rights and guarantees expressed in the constitutional text do not exclude others arising from international treaties to which the Federative Republic of Brazil is a party. Treaties that deal with human rights are supralegal, that is, they are below the Federal Constitution and above ordinary laws. International agreements on human rights signed before Constitutional Amendment No. 45 of 2004, or even after, but which do not meet its requirements, enter the national order as supralegal norms. This is the understanding of the STF, which adopted the thesis defended by Minister Gilmar Mendes on the occasion of the judgment of RE 466343-SPin 2008. His historic vote reads: “It is also important to make it clear that the thesis of ordinary legality, insofar as it allows the Brazilian State, after all, to unilaterally breach an international agreement , goes against the international principles established by the Vienna Convention on the Law of Treaties, of 1969, which, in its art. 27, determines that no contracting State ‘may invoke the provisions of its internal law to justify the non-performance of a treaty’. Therefore, the interpretation that attributes the characteristic of supralegality to human rights treaties and conventions seems more consistent. This thesis argues for the argument that treaties on human rights would be infraconstitutional, however, given their special character in relation to other international normative acts, they would also be endowed with an attribute of supralegality. In other words, treaties on human rights could not challenge the supremacy of the Constitution, but would have a special place reserved in the legal system. To equate them with ordinary legislation would be to underestimate their special value in the context of the system of protection of human rights”.
Prerogatives of the President of the Republic and ministers in crimes of responsibility, in connection with
Political jurisdiction: The jurisdictional power is not exclusive to the judiciary. There is political jurisdiction. Pursuant to the provisions of Article 52 of the CF, items I and II , the Federal Senate is exclusively responsible for prosecuting and judging the President and Vice President of the Republic for crimes of responsibility , as well as Ministers of State and commanders of the Navy, Army and the Air Force in crimes of the same nature. It is also incumbent upon the Federal Senate to prosecute and judge the ministers of the Federal Supreme Court, the National Council of Justice and the National Council of the Public Ministry, the Attorney General of the Republic and the Attorney General of the Union in crimes of responsibility. Common crimes are all those that are not crimes of responsibility, that is, military crimes, electoral crimes, crimes under the jurisdiction of Common Justice (federal and state), JECRIM and misdemeanors.
Common and responsibility crimes: The so-called responsibility crime is not exactly a crime, but an illicit act committed by a political agent. This is a violation of content or a political/administrative nature. Law No. 1,079 /50 deals with crimes committed by the President of the Republic, ministers of State and the Federal Supreme Court, governors and state secretaries (see article 85 of the CF on crimes committed by the president). Decree -Law No. 201/67 deals with crimes committed by mayors and councilors.
Crimes for which the President of the Republic is responsible: Article 85 of the CF lists the crimes for which the President of the Republic is responsible.
Process and judgment: In accordance with article 86 of the CF , once the accusation against the President of the Republic has been admitted by two thirds of the Chamber of Deputies, he will be submitted to trial before the Federal Supreme Court in common criminal offenses or before the Federal Senate in criminal crimes. of responsability. Law No. 1079 , of April 10, 1950 , regulates the process and judgment of crimes of responsibility.
Jurisprudence
Public agents are subject both to civil liability for acts of administrative improbity and to political-administrative liability for crimes of responsibility: Political agents, with the exception of the President of the Republic, are subject to a double sanctioning regime, so that they are subject to both civil liability for acts of administrative impropriety in terms of political-administrative liability for crimes of responsibility ( Pet 3,240 AgR, rel. to the ac. min. Roberto Barroso, DJE of 8-22-2018 ).
Military Justice, Special Court, Electoral Justice, Labor Justice
Competence of the Military Justice and military crimes: Decree-Law No. 1,001 , of October 21, 1969, constitutes the Military Penal Code , and Decree-Law No. 1,002 , of October 21, 1969, the Code of Criminal Procedure Military . Military Justice is responsible for prosecuting and judging military crimes defined by law ( articles 124 and 125, paragraph 4 of the CF ). It is a very special justice, as it does not judge related crimes of other justices. Military Justice only judges military crimes. In the event of a military crime related to a common crime, only the former is judged by the Military Justice. With regard to more details on the competence of the Military Justice, see the titleMilitary Justice in our comments on Article 69.
The defunct National Security Court: In the present provision, item IV, the Constitution of 1937 is reported , whose number 17 of article 122 said that crimes against the existence, security and integrity of the State, the custody and employment of the economy were subjected to process and judgment before a special court. This special court was the National Security Court created in 1936 during the Getulio Vargas government. It judged especially political crimes. Among others, Monteiro Lobato and Luis Carlos Prestes were judged in it. Constitutional Law n. 14/1945 extinguished the TSN. Currently, crimes against national security are defined in Law n. 7,170/83. The investigation of facts provided for as a crime in this law is the responsibility of the Federal Police, pursuant to article 31 of that statute. The process and judgment of these crimes is the responsibility of the Federal Justice ( article 109, item IV of the CF ).
Electoral Justice: Electoral jurisdiction, like the military, constitutes special jurisdiction. The Electoral Justice processes and judges electoral crimes. This is your subject, your theme. Contrary to what happens with the Military Justice, the Electoral Justice processes and judges common crimes related to electoral crime. It is the application of the rule of article 78, item IV of the CPP: In determining jurisdiction by connection or salute, the following rules shall be observed: (…) in the concurrence between common and special jurisdiction, this shall prevail . The Electoral Code is Law No. 4737 of July 15, 1965. It typifies several electoral crimes from articles 289 to 354. The process for electoral crime is regulated by articles 355 to 364, and in the latter provision it mentions that in the process and trial of electoral crimes and related common crimes, as well as in appeals and in the execution, which concern them, the Code of Criminal Procedure applies as a subsidiary or supplementary law. On the subject, see the title Electoral Justice in comments on Article 69 .
Absence of criminal jurisdiction of the Labor Court: Through the Injunction in Direct Action of Unconstitutionality (ADI) 3684 , items I, IV and IX of article 114 of the CF were interpreted . It was recognized that the Labor Court does not have the competence to prosecute and judge criminal actions. On the subject, see the title Absence of criminal competence of the Labor Court in comments on article 69.
Unrecognized Press Law and CPP Subsidiary Application to Special Laws
Press law not approved by the Federal Constitution: In the Claim of Non-compliance with Fundamental Precept No. 130/DF, the Federal Supreme Court decided that Federal Law No. 5,250, of February 9, 1967 (Press Law) was not accepted by the 1988 Constitution. , the Penal Code, the Civil Procedure Code and the Criminal Procedure Code to causes arising from press relations. The right of reply, which manifests itself as the action of replicating or rectifying published material, can be exercised by those who see themselves offended in their objective or subjective honor, as stated in item V of article 5 of the Federal Constitution. This rule is ‘fully effective and immediately applicable’, according to José Afonso da Silva’s classification. ‘Prompt application rule’, in the language of Celso Ribeiro Bastos and Carlos Ayres Britto, ‘in a joint doctrinal work”.Subsidiary application of the CPP to special laws: The sole paragraph of this provision, referring to items IV and V, means that, when the laws regulating special procedures do not provide otherwise, the provisions of the Code of Criminal Procedure apply in a subsidiary way . The following constitute criminal laws and special criminal procedural laws, among others: Law n. 13,869/2019 (abuse of authority); Law 5.256/1967 (special prison); Law 7,492/86 (crimes against the financial system); Law 8.072/90 (heinous crimes); Law 8.137/90 (crimes against the tax system); Law n. 9,099/95 (special court); Law n. 9,455/97(torture); Law n. 9.503/97 (Brazilian Traffic Code); Law 9.613/98 (crimes of money laundering); Law 9.807/99 (victim and witness protection); Law n. 10,826/2003 (weapons); Law 11.343/2006 (narcotics trafficking); Law n. 11,419/2006 (electronic process); Law 12.850/2013 (criminal organization).
