Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 146º CPP – Argument of falsehood and special powers.

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Art. 146. The allegation of falsehood, made by a prosecutor, requires special powers. 

Special powers for the allegation of falsehood

Requirement of special powers:  To argue falsehood, the attorney’s power of attorney must contain special powers. A power of attorney for the “criminal defense” or with the  ad judicia clause  (for the forum in general) is not enough. It needs express powers to argue the falsity of a given document. Once the special powers are granted, the party is subject to answer for the crime of slanderous denunciation, which consists of “giving rise to the initiation of a police investigation, judicial proceeding, initiation of an administrative investigation, civil inquiry or action of administrative impropriety against someone, attributing to him crime of which he knows he is innocent” ( article 339 of the CP ). If the power of attorney lacks powers, a period must be granted for the defect to be corrected. 

Public defender and dative defender: A public defender is a lawyer who belongs to the public defender’s office. He does not defend with power of attorney. To claim document falsity, he needs a power of attorney with special powers, or else the accused must sign the petition of falsehood. A dative defender is the person appointed by the magistrate to defend the accused who does not have a lawyer and does not want to hire one. If the accused has financial conditions, the choice of lawyer should fall on a lawyer, and not on the Public Defender, since the latter has the duty to defend only those in need (it constitutes a misuse of function if the Public Defender defends accused who are able to pay private lawyer). The dative lawyer, for being appointed, to file an allegation of falsehood, needs, as well as the Public Defender, or a power of attorney with special powers,


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