Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 152. If it is verified that the mental illness supervened the infraction, the process will remain suspended until the accused recovers, observing § 2 of  article 149.
§ 1 The judge may, in this case, order the internment of the accused in a judicial asylum or in another suitable establishment.
§ 2 The process will resume its course, as long as the accused is reinstated, being assured the faculty of re-examining the witnesses who have given testimony without his presence.

Supervening mental illness, prison term and dismemberment

Mental illness during the course of the proceedings and suspension:  If the accused becomes mentally ill during the course of the proceedings, so that his defense is not impaired, his proceedings are suspended until he recovers. The provisions of article 149, paragraph 2 apply  , that is, the accused is appointed guardian, and only steps are taken that may be jeopardized by the postponement.

Order of hospitalization and period:  After the examination of insanity is carried out, if it is found that the mental illness started after the date of the fact narrated in the initial accusation, the judge can order the hospitalization of the accused in a custody and treatment house. But only if the requirements of this imprisonment are present, which are those of  articles 319, item VII  and  282 of the CPP , that is, the internment measure will fit in the cases of crimes committed with violence or serious threat, when the expert concludes that the accused is unimputable or semi-imputable ( Article 26 of the Penal Code) and there is a risk of recurrence. The precautionary measure must be applied observing: I – necessity for the application of the criminal law, for the investigation or the criminal instruction and, in the cases expressly foreseen, to avoid the commission of criminal infractions; II – suitability of the measure to the seriousness of the crime, circumstances of the fact and personal conditions of the indicted or accused. The deadline must be that of precautionary measures in general, respecting the principle of provisional nature of criminal precautionary measures. Not even close is the term of the penalty in the abstract or the penalty that would apply in the concrete case, since the accused is, in principle, innocent. In this case, by analogy, the deadlines that apply to pre-trial detention should be applied, since the internee is in prison without sentence, with some extension or reduction, depending on the expert medical follow-up.

Co-accused and dismemberment of the process:  Having co-accused and in relation to one of them the suspension of the process due to mental illness is determined, the process is dismembered. This is what  article 79, paragraph 1 , establishes when it says that “the unity of the process shall cease, in any case, if, in relation to a co-defendant, the case provided for in article 152 prevails”.


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