Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 21 CPP – Incommunicability

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Art. 21. The incommunicability of the accused will always depend on the order in the records and will only be allowed when the interest of society or the convenience of the investigation so require.
        Single paragraph. The incommunicability, which will not exceed three days, will be decreed by reasoned order of the Judge, at the request of the police authority, or of the Public Prosecutor’s Office, respecting, in any case, the provisions of article 89, item III, of the Statute of the Order dos Advogados do Brasil (Law No. 4,215, of April 27, 1963) (Wording given by Law No. 5,010, of 5.30.1966)



Revocation by the new CF:  This device is revoked by  article 136, paragraph 3, item IV of the CF , which prohibits the incommunicability of the prisoner during the state of defense. Now, if during a state of defense, an exceptional situation, incommunicability is prohibited by the Political Charter, it is to be understood that it does not fit outside the state of defense. In addition to the provisions of  article 5, item LXII of the CF , which provides that the arrest of any person and the place where he is found will be communicated immediately to the competent judge and the family of the prisoner or to the person indicated by him. In the same vein,  article 5, item LXIII of the CF , which ensures family assistance and a lawyer following imprisonment.

Considerations about the device:  Even those who defend the constitutionality of the incommunicability point out that the judicial order that authorizes it must be motivated, under penalty of nullity. Exempt the defender from incommunicability.

Nature of incommunicability:  Incommunicability, with regard to its nature, is a precautionary measure restricting freedom. Although the person who suffers incommunicability is already imprisoned, his freedom becomes more restricted.

Incommunicability and the lawyer:  The sole paragraph was worded as determined by Law n. 5,010, of 5.30.66. Article 89, item III of the Statute of the OAB, except in the sole paragraph, was revoked. Article  7, item III of Law no. 8.906/94 , according to which it is the lawyer’s right to communicate with his clients, personally and privately, even without a power of attorney, when they are arrested, detained or collected in civil or military establishments, even if considered incommunicado.


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