Art. 10. The investigation must end within 10 days, if the accused has been arrested in flagrante delicto, or is preventively detained, counting the period, in this case, from the day on which the arrest order is executed, or within a period of 30 days, when released, with or without bail.
§ 1° The authority will make a detailed report of what has been found and will send records to the competent judge.
§ 2° In the report, the authority may indicate witnesses who have not been questioned, mentioning the place where they can be found.
§ 3° When the fact is difficult to elucidate, and the accused is free, the authority may request the judge to return the case file, for further steps, which will be carried out within the period set by the judge.
The count of deadlines
Deadline with the accused arrested: If the accused is arrested, due to arrest in flagrante delicto, temporary or preventive detention, the deadline for completing the investigation is ten days from the date of arrest. The inquiry must be sent to the Justice no later than the 11th day, as it, the inquiry, must end in ten days. If the arrest takes place on a Saturday, Sunday or public holiday, those days count. Only when the defendant is released can the term be extended.
Conversion of flagrante delicto into preventive: In the event of conversion of flagrante delicto into preventive ( article 310, item II ), the term starts from arrest in flagrante delicto – and not from conversion -, because, depending on the device under examination, the initial term of The term counts from the day the arrest order is executed . Mention is presumed to be the first arrest warrant.
Defendant provisionally arrested: If the accused is preventively arrested, the case should not be returned to the police and for the following reason: if there are elements to arrest preventively (proof of the existence of a crime and sufficient evidence of authorship), there must certainly be sufficient elements to the filing of the complaint. In view of the return of the records, with the accused being held preventively, the arrest is illegal, making the habeas corpus possible .
Imprisoned arrested. Period of inquiry: With regard to the Federal Court, applicable is article 66 of Law n. 5,010, of May 30, 1966 , according to which “the deadline for completing the police investigation will be fifteen days, when the accused is arrested, and may be extended for another fifteen days, at the request, duly substantiated, of the police authority and granted by the judge responsible for hearing the case. Sole paragraph: when requesting an extension of the deadline for completing the investigation, the authority must present the prisoner to the judge”. The illegality of the arrest of the accused is configured when the investigation records are not sent to the Justice, within a period of fifteen days, with a request for extension ( article 648, item II of the CPP). With regard to Common Justice, article 3o-B, item VIII , establishes that the judge may extend the period of duration of the investigation, with the investigated being arrested, in view of the reasons presented by the police authority. This period may be extended, only once, for a period of fifteen days, after which, if the investigation is still not concluded, the arrest will be immediately relaxed (paragraph 2 of article 3o-B).
Deadline with the defendant released: When the accused is responding freely to the investigation, the deadline for his referral to Justice is thirty days. If the fact is difficult to elucidate, the police authority may request the judge to return the records, for further steps, which will be carried out within the period set by the judge (paragraph 3 of article 10). Upon receiving the request for extension of time, the law does not provide that the judge must give it to the Public Prosecutor’s Office. However, this is the correct measure, because the prosecutor may understand that there are already enough elements to file a criminal action. The deadline must be set by the judge in consideration of the pending steps and the complexity of the case. Nothing prevents the extension period from being longer than thirty days.
Debates around the deadline if the accused is arrested: The investigation must end within ten days, if the accused has been arrested in flagrante delicto, or is preventively detained, counting the period, in this case, from the day on which if you execute the arrest warrant. For some, the ten-day period begins on the day of arrest. For others, the next day. For some, the deadline ends on the tenth day; for others, on the eleventh. For some, if the deadline ends on a weekend or holiday, it is extended to the first working day; for others, this is not the case. For some, the deadline is criminal law, with article 10 of the CP being applicable . Others maintain that the deadline is a matter of procedural law, and, as a consequence, article 798 of the CPP is in effect. and its paragraphs: All deadlines will run in a notary’s office and will be continuous and peremptory, not interrupted by holidays, Sundays or public holidays ( caput ). The starting day will not be computed within the term, including, however, the expiration date (paragraph 1). The deadline that ends on a Sunday or public holiday will be considered extended until the next business day. (paragraph 3). Renato Marcão, in comments to the present device, observes that “the issue is controversial in the doctrine, since, for many, the count must take into account the provisions of art. 798, § 1, of the CPP. They understand that, in the event of an arrested suspect, the count must be carried out based on art. 10 of CP: FERNANDO DA COSTA TOURINHO FILHO, Criminal procedure manual, 15th ed., São Paulo, Saraiva, 2012, p. 150; GUILHERME DE SOUZA NUCCI, Manual of criminal procedure and execution, 8th ed., 2nd tir., São Paulo, Revista dos Tribunais, 2011, p. 169; NESTOR TÁVORA and ROSMAR RODRIGUES ALENCAR, Criminal procedural law course, 7th ed., Salvador, JusPodivm, 2012, p. 112. On the contrary, they understand that the count must consider the provisions of art. 798, § 1, of the CPP: EDILSON MOUGENOT BONFIM, Criminal Procedure Course, 6th ed., São Paulo, Saraiva, 2011, p. 169; FERNANDO CAPEZ, Criminal Procedure Course, 19th ed., São Paulo, 2012, p. 142; JULIO FABBRINI MIRABETE, Criminal procedure, 16th ed., São Paulo, Atlas, 2004, p. 103 (Marcão, Renato. Code of Criminal Procedure Commented. Editora Saraiva: 2015). Follow our position in the next title.
Who is the subject of the sentence? After logical analysis of the device, it is possible to conclude that there is no reason to depart from the literal interpretation. In this type of interpretation, some parsing rules are of some use. In prayer the inquiry must end within 10 days, the subject of prayer is inquiry . It’s not prison . What must end in ten days is the inquiry. This is the wording of the device: The investigation must end within 10 days, if the accused has been arrested in flagrante delicto, or is preventively detained . The inquiry is the subject of the sentence. It should end is a verb phrase. Must finish within 10 days is a verbal predicate. Within ten days is adverbial temporal adjunct. If the accused has been arrested in flagrante delicto, it is an adverbial conditional subordinate clause. Or is preemptively arrested is another adverbial conditional subordinate clause. The conclusion reached is that the verb of the prayer is not regulating the term of imprisonment, but the term of inquiry. Therefore, rules relating to imprisonment, whether procedural or substantive, do not apply. What rules, then, apply?
Now, rules of administrative law, given that the inquiry is an administrative procedure, that is to say, Law n. 9,787/1999 , which provides that administrative procedural deadlines are counted in consecutive days, excluding the starting day and including the due date ( art. 66, § 2 ). A parallel model follows: The student ( the delegate ) must finish the work ( inquiry ) within ten days of the bell ringing ( prison). If the bell rings on the 5th, the work must be finished by 24:00 on the 15th. The work must be delivered by 24:00 on the 16th – be it a holiday, Saturday or Sunday, it doesn’t matter. And it should be noted, if it must be finished in 10 days, the student has the entire tenth day to finish the work (the whole of the 15th), and can therefore hand it in on the 16th. Everything would be different if article 10 were written as follows: The prison term will last for 10 days if the accused is responding to an inquiry arrested. In this case, the subject of the sentence would be prison. In this case, it would be necessary to look for the norms related to imprisonment that would regulate the concrete case. Specifically in this hypothetical norm, it would not be article 798 that would regulate the duration of imprisonment, as this device deals with the parties’ deadlines for performing procedural acts. It would be the norm of article 10 of the CP, without interruption, without extensions. Returning to the term of the investigation of the arrested suspect and concluding: a) the first day does not count; b) must be completed by 12:00 am on the tenth day (because the caput expressly grants a period of ten days for completion), and may be delivered on the eleventh day; 3) weekends and holidays are disregarded for all purposes (article 798, paragraph 3, does not apply, as it is a procedural term, which is not the case).
Doctrine
Henrique Hoffmann and Adriano Sousa Costa: Deadline for completion of the investigation exists for the protection of the suspect . Conjure
Henrique Hoffmann and Adriano Sousa Costa: Deadline for completion of the investigation exists for the protection of the suspect . Conjure
Iago Oliveira Silva de Sousa: Some considerations about the deadline for completing the police investigation in cases where the investigated person is temporarily arrested for committing a heinous crime or equivalent . Virtual Notebook.
Joana Patrícia Neto Alves: The maximum duration of the survey . Law School. Coimbra University. eg.uc.pt.
Thiago Guimarães Tannuri Ferreira Lima Falcão: The excessive extension of time for the conclusion and consequent finalization of the investigations and the possibility of filing a habeas corpus to suspend the police investigation . Crumbs.
Jurisprudence
Exceeding the deadline for ending the investigation of the arrested suspect : Exceeding the deadline for closing the investigation when the accused is arrested is applicable to habeas corpus (RT 639 / 304).
Indicted preventive detainee and return of records to the police : The decree of preventive custody presupposes elements that authorize the offering of the complaint. The completion of police inquiries is unnecessary for this last measure, unless preventive custody has been illegally enacted (TJRS – HC 27660).
Direct processing of a police inquiry between the Federal Police and the Public Prosecutor’s Office: The ordinance issued by a Federal Judge which, based on Res. CJF n. 63/2009, establishes the direct processing of police inquiries between the Federal Police and the Federal Public Ministry ( STJ, RMS 46.165-SP, Min. Gurgel de Faria, judged on 11/19/2015, DJe 12/4/2015 – Newsletter n. 574 ).
The report
The report: The report is made at the end of the survey. As for the indictment, there is no determined time for its realization. When indicting, the police authority must substantiate, albeit succinctly. You must limit yourself to saying why you understand that there are indications of a crime. It is not to explain the reasons why it understands that there is a crime, whether it is proven or not. To indict, evidence is enough. So suffice it to say why there are clues . And enough. If there is no indictment during the course of the investigation, the report must not say that it was convinced of the non-existence of a crime. Suffice it to say that he did not indict because he understood that there was no evidence. Excessive language must be avoided. See subheading Grounds for the indictment in the title Listen to the defendant. Driving. Indictment (item V) , in comments to article 6. As for the report itself, it does not lend itself to the launching of convictions or evaluations of evidence. Report is description, explanation. Not for launching a detective narrative. It is appropriate to describe the events of the police investigation, how the fact came to the knowledge of the police authority and the succession of events related to the investigation and the collection of evidence. In the report, the authority may indicate witnesses who have not been questioned, mentioning the place where they can be found. When the fact is difficult to elucidate, and the accused is free, the authority may request the judge to return the case file, for further steps, which will be carried out within the period set by the judge.
Return of the survey for further steps
Released. Successive returns and disindictment: Once the accused is released, the return of the records to the police authority for new steps may be requested more than once. However, if there are successive returns, without offering the complaint, the disindictment is due. Now, if there are not enough evidentiary elements to denounce, there are certainly not enough elements to justify maintaining the indictment. Dismissal can be carried out by the police authority, at the request of the accused or even through habeas corpus . The chief of police has discretionary power to terminate the case. Understanding that there are grounds to annul or revoke the act, he can do so.
View to the Public Prosecutor’s Office: Although paragraph 3 does not mention anything, when the police authority requests the judge to return the records, the MP must be seen, since he may, with a different point of view from the police authority, understand that already there is just cause for criminal action and to file the complaint. You may also, together with the complaint, in a separate piece, request the judge to ask the police authority for some steps. It is more practical, less bureaucratic and more sensible for the prosecutor to request these steps directly from the police authority. On this subject, see comments on Article 16 .
Jurisprudence
Inquiry stopped at the police : It constitutes an illegal embarrassment, declarable through habeas corpus , the fact that the inquiry remains for more than thirty days at the Police Station without judicial authorization for that purpose. In this case, habeas corpus will be granted in order to order the referral of the inquiry to the Justice (TJRS – HC 685000556).
