Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 221º CPP – Prerogatives of place, day and time

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Art. 221. The President and Vice-President of the Republic, Senators and Federal Deputies, Ministers of State, Governors of States and Territories, Secretaries of State, Mayors of the Federal District and Municipalities, Deputies to State Legislative Assemblies , members of the Judiciary, ministers and judges of the Audit Courts of the Union, the States, the Federal District, as well as those of the Maritime Court, will be questioned in a place, day and time previously agreed between them and the judge. (Wording provided by Law No. 3,653, of 11.4.1959)
§ 1 The President and Vice-President of the Republic, the Presidents of the Federal Senate, the Chamber of Deputies and the Federal Supreme Court may opt for the provision of written testimony, in which case the questions, formulated by the parties and granted by the judge, will be transmitted to them by letter. (Wording provided by Law No. 6,416, of 5.24.1977)
§ 2. Military personnel must be requested from a higher authority. (Wording provided by Law No. 6,416, of 5.24.1977) § 3 The provisions of article 218
shall apply to public servants  , however, the issuance of the warrant must be immediately communicated to the head of the department in which they serve, indicating of the day and time set. (Included by Law No. 6,416, of 5.24.1977)

Witnesses with prerogatives of place, day and time

Judge, Public Prosecutor and Public Defender:  The day and time to be heard must be adjusted. Regarding judges, prescribes  Complementary Law n. 35/1979, in its article 33 :  “The prerogatives of the magistrate are: I – to be heard as a witness on a day, time and place previously agreed with the authority or Judge of equal or lower instance”. As for the Federal Public Ministry,  Complementary Law 75/93 states in Article 18 : “The members of the Federal Public Ministry have the following prerogatives: (…) II – procedural: (…) g) be heard, as witnesses, on the day, time and place previously agreed with the magistrate or the competent authority”. Tangent to the State Public Ministry,  Law n. 8.625/93 in article 40  states : “The prerogatives of the members of the Public Prosecutor’s Office, in addition to others provided for in the Organic Law, are: I – to be heard, as a witness or victim, in any process or inquiry, on a day, time and place previously agreed with the judge or the competent authority”. As for the Public Defender’s Office,  Complementary Law n. 80/94 prescribes in article 43 , item XIV: Members of the Federal Public Defender’s Office are guaranteed to be heard as a witness, in any process or procedure, on a day, time and place previously agreed with the competent authority.

Maritime Court:  The Maritime Court, linked to the Ministry of the Navy, is regulated by Law n. 2.180/1954 and has the attributions to judge the accidents and facts of maritime, river and lake navigation and the issues related to such activity. It is composed of seven judges, with diverse origins described in  article 2 of Law n. 2,180/1954 .

New letters containing questions:  In the case of questions asked through letters (paragraph 1 of this device), the parties and the judge may ask new questions after receiving the answers, that is, new letters will be sent.

Invalidity of the written testimony:  The Public Prosecutors Eugênio Pacelli and Douglas Fischer, in the work jointly authored Comments on Article 221 of the CPP, maintain that, in view of the constitutional principle of due process, this device, in the part in which it provides for the provision of written testimony, it was not accepted by the CF of 1988 (Pacelli, Eugênio and Fischer, Douglas.  Comments on the Criminal Procedure Code and its Jurisprudence . 4th Ed. Editora Atlas: 2012).

Prerogatives of the  caput  and paragraph 1 do not apply to investigated and accused persons:  The choice of place, day, time and the possibility of providing written testimony does not apply to the persons referred to in the  caput  and paragraph 1 of this device, when they give testimony as suspects or defendants. This Article 221 is inserted in Chapter VI, which deals with the  Witnesses . This is a benefit, and there is no reason that justifies interpreting article 221 extensively to reach those people when they are investigated or accused, occasions in which the inquiry has another nature and other objectives. There is no resemblance, the analogy is not applicable.


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