Art. 222-A. Letters rogatory will only be issued if their indispensability is demonstrated in advance, with the requesting party bearing the shipping costs.
Single paragraph. The provisions of §§ 1 and 2 of art. 222 of this Code.
Rogatory letter, procedure, judgment, costs
Letter rogatory: Letter rogatory is similar to letter rogatory. The difference is that, in precatoria, a Brazilian judge makes a request to another Brazilian, to carry out a certain procedural act; in rogatory, the request is made to a foreign judge. The rogatories obey the rules established in the International Conventions. They do not lend themselves to acts of judicial constriction.
Procedure: They are, by the respective judge, sent to the Minister of Justice, in order to request compliance, through diplomatic channels, to the competent foreign authorities ( article 783 ).
Conducting the judgment: Under the terms of this article 222-A, the issuance of the writ does not suspend the criminal investigation and, after the set period, the judgment may be held, but, at any time, the writ, once returned, will be attached to the cars. Regarding this possibility of trial without compliance with the rogatory letter, we refer to the subtitle Judgment without the witness being heard in the title Judgment without the questioning of a witness , in comments to article 222.
There are no costs: The Public Ministry does not pay the costs of rogatory. Poor accused, defended by the Public Defender’s Office or not, also does not pay. And those who can pay, don’t pay either. One, because he is presumably innocent and, being innocent, there is no reason to pay anything to the State. Two, because if the other party does not pay (the MP), there is no reason for the accused to pay (principle of equality). If the instrument of enforcing the right is facilitated for one, it must be for the other under equal conditions. The second part of the caput of this article 222-A violates, therefore, the constitutional principles of equality and the presumption of innocence.
Jurisprudence
There is no restriction of defense when the decision rejecting the hearing of witnesses residing in another country is duly substantiated. Source: Jurisprudence in theses (STJ).
Judgments:
RHC 100406/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/21/2018, DJE 08/29/2018
AgRg no REsp 1589291/PB, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 06/05/2018, DJE 06/13/2018
AgRg on RHC 088461/RS, Rel. Justice Sebastião Reis Júnior, Sixth Panel, judged on 11/14/2017, DJE 11/21/2017
RHC 078273/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/16/2017, DJE 05/31/2017
RHC 042954/PE, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 10/20/2016, DJE 11/11/2016
REsp 947565/PR, Rel. Minister Arnaldo Esteves Lima, Fifth Panel, judged on 08/25/2009, DJE 08/02/2010
There is no restriction of defense when the decision rejecting the hearing of witnesses residing in another country is duly substantiated. Source: Jurisprudence in theses (STJ).
Judgments:
RHC 100406/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/21/2018, DJE 08/29/2018
AgRg no REsp 1589291/PB, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 06/05/2018, DJE 06/13/2018
AgRg on RHC 088461/RS, Rel. Justice Sebastião Reis Júnior, Sixth Panel, judged on 11/14/2017, DJE 11/21/2017
RHC 078273/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/16/2017, DJE 05/31/2017
RHC 042954/PE, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 10/20/2016, DJE 11/11/2016
REsp 947565/PR, Rel. Minister Arnaldo Esteves Lima, Fifth Panel, judged on 08/25/2009, DJE 08/02/2010
