Art. 261. No accused, even if absent or on the run, will be prosecuted or tried without a lawyer.
Single paragraph. The technical defense, when carried out by a public or dative defender, will always be exercised through a reasoned manifestation. (Included by Law No. 10,792, of 12.1.2003 )
The broad constitutional defense
Principle of ample defense: The defense represents in the process the interest in the acquittal of the innocent. It is a social interest, insofar as the ideals of the community are security and tranquility, aspirations that would not be achieved if the citizen was not sure that he would have an effective and participatory defense, in case he was faced with a criminal action. As well as the contradictory principle, that of full defense comes from the meaning of the process as an individual guarantee, a meaning that does not exclude the meaning of the process as a guarantee of the collectivity itself. The defense, like the action, in terms of its nature, is right. It is a constitutional right ( article 5, item LV, of the Federal Constitution) and procedural. As in the process the prosecution is in charge of a body with technical and legal knowledge, the mandatory presence of a qualified defender to assist the defense of the accused is established, in order to place the defense in an equal position, as well as to reinforce the principle contradictory and enable the effectiveness of the broad constitutional defense. The accused without financial conditions to hire a lawyer is granted free legal assistance. Even the absent accused is not left without a lawyer – a lawyer is appointed by the judge of the case to defend him. It follows from the principle that the accusation must precede the defence. In order to be able to defend himself, the accused must first know exactly what the charge is against him and what evidence there is against him. The accused, as Mariconde says, Studies in criminal procedure law . Córdoba, University Press, 1956, v. II, p.107).
Doctrine
Afrânio Silva Jardim: Freedom of the press. There can be no absolute rights in a true Democratic State of Law. Emporium of law.
Alexandre de Moraes: The Indispensable Contribution of José Celso de Mello Filho to the Effectiveness of the Brazilian Constitutional Jurisdiction in Defense of Fundamental Rights . Digital library.
André Augusto Mendes Machado: A defensive criminal investigation . USP.
Aury Lopes Jr., Alexandre Morais da Rosa and Gabriel Bulhões: Defensive investigation: the power-duty of advocacy and citizenship law . Conjure
Carlos Eduardo Thompson Flores Lenz: Full defense and criminal procedure . TRF4 doctrine magazine
Celso de Mello : Interviewed by Mônica Bergamo. Never before has the media been so ostensible as to overwhelm a judge . The constitutionalists.
Cláudio Colnago: The Brazilian Paradox of Intolerance . The constitutionalists.
Dias Toffoli: The AGU in defense of the State and the citizen . Conjure
Fernando Augusto Fernandes: Far from being diminished or extirpated, the fifth constitutional must be celebrated . Conjure
Flavio Meirelles Medeiros: The criminal defender never misses the truth . Jusbrasil.
Flavio Meirelles Medeiros: The Operator of Law, Justice and the Crowd . Jusbrasil.
Francisco Firmo Barreto de Araújo: The contradictory in the police investigation and the role of the public defender . University of Fortaleza.
Gilmar Mendes: Fundamental rights and their multiple meanings in the constitutional order . gilmarmendes.com.br.
Gilmar Mendes: Meaning of the right of defense . gilmarmendes.com.br.
Gisela Gondin Ramos: The early burial of the CNJ . The constitutionalists.
Jader Marques: José Roberto Batochio and the criminalization of law. Emporium of law. On criminal organization and obstruction of justice.
José Barcelos de Souza: Defense powers in investigation and investigation by the defense . Crumbs.
José Joaquim Canotilho: “Problems are in the streets, not in the Constitution”. Interview by Alessandro Cristo and Márcio Chaer.Conjure
José Luis Oliveira Lima: Where is the OAB? olimaadvogados.adv.br.
Kleudson Moreira Tavares: Criminal Investigation: The Role of the Defense in the Preliminary Phase of the Criminal Procedure . Higher Institute of Police Sciences and Homeland Security.
Lenio Streck: “Abandoning one’s will to judge is the cost of democracy”. Interview . Conjure
Leonardo Isaac Yarochewsky: Defense does not belong only to the accused, it is in the public interest . Conjure
Luiz Flávio Borges D’Urso: In defense of the constitutional fifth . duraso.com.br.
Luiz Olavo Baptista:: The Federal Constitution and the Bar Examination . The constitutionalists.
Malu Delgado : What to expect from Dias Toffoli . The constitutionalists.
Maurício Dieter : On the shoulders of giants — for an always combative criminal law practice . Conjure
Ney Bello: Punishment as a Necessity: The Crossroads of Criminal Jurisdiction . Conjure
Patrícia Falcão Gandra : Countermajoritarian principle and separation of powers in the defense and promotion of fundamental rights . repository.ul.pt. 2017
Raúl Zaffaroni, Argentine jurist: “The function of criminal law is to limit punitive power”. Interview by Marina Ito. Conjure
Roberto Delmanto: The autophagy of the “car wash” operation and its executors . Conjure
Rogério dos Reis Devisate. Advocacy, Advocacy and MP are different . Anadep.
Tatiane Imai Zanardi: Defensive criminal investigation: a practice to be disseminated . FAE University Center.
Jurisprudence
Legitimacy of the OAB to claim in defense of the interests and prerogatives of lawyers: The sectional councils of the Brazilian Bar Association (OAB) have the legitimacy to file a complaint with the Federal Supreme Court (STF) in defense of the specific interests and prerogatives of its members, under the express legal provisions. Law 8.906/1994 (Advocacy Statute) grants broad legitimacy to the OAB to act in defense of the legal order, the Democratic State of Law and all the lawyers who are part of its staff, as observed in art. 44, I and II, of art. 49, sole paragraph, and art. 54, II and III, with art. 57. These norms are in line with the qualification of essential function to justice attributed to advocacy by art. 133 of the Federal Constitution (CF), as well as the role of the OAB, with broad postulatory capacity, as recognized by the jurisprudence of the STF (Rcl 43479/RJ, rapporteur Min. Gilmar Mendes, judgment on 8.10.2021 ).
due process
Principle of due process: The obligatory presence of the defender throughout the course of the process is ensured by the principles of full defense and due process. For the latter, the judge does not have the power to give the process the conformation he wants. He is not the one who decides what procedure will be adopted for the trial of the accused. The form of the procedural act – used here the expression “form” in its broad sense, to encompass the time, place and manner of the act – is provided for and regulated by law. Procedural judicial activity is subject to the law. The criminal procedure is only valid to resolve the dispute when it is subject to criminal procedural rules. Due process is that regulated by the rules of procedure in force to which the judge has a legal duty to submit the accused. Procedural formalities are imagined by lay people as signs of conservatism or useless ostentation of justice. It’s not like this. Formalities are guarantees of the parties, they are responsible for safeguarding the subjective procedural rights of litigants. The principle of due process is assured to the parties by the procedural institute of nullities. Nullities are the bodyguards, or security guards, of due process. If there is prejudice to the right due to the omission of an essential procedural formality, the aggrieved party may argue the nullity, claiming the declaration of procedural ineffectiveness. All this does not mean that the process suffers from “ritual or formalistic passion”. The form is present in the process in order to protect the rights of the parties. are responsible for safeguarding the subjective procedural rights of litigants. The principle of due process is assured to the parties by the procedural institute of nullities. Nullities are the bodyguards, or security guards, of due process. If there is prejudice to the right due to the omission of an essential procedural formality, the aggrieved party may argue the nullity, claiming the declaration of procedural ineffectiveness. All this does not mean that the process suffers from “ritual or formalistic passion”. The form is present in the process in order to protect the rights of the parties. are responsible for safeguarding the subjective procedural rights of litigants. The principle of due process is assured to the parties by the procedural institute of nullities. Nullities are the bodyguards, or security guards, of due process. If there is prejudice to the right due to the omission of an essential procedural formality, the aggrieved party may argue the nullity, claiming the declaration of procedural ineffectiveness. All this does not mean that the process suffers from “ritual or formalistic passion”. The form is present in the process in order to protect the rights of the parties. If there is prejudice to the right due to the omission of an essential procedural formality, the aggrieved party may argue the nullity, claiming the declaration of procedural ineffectiveness. All this does not mean that the process suffers from “ritual or formalistic passion”. The form is present in the process in order to protect the rights of the parties. If there is prejudice to the right due to the omission of an essential procedural formality, the aggrieved party may argue the nullity, claiming the declaration of procedural ineffectiveness. All this does not mean that the process suffers from “ritual or formalistic passion”. The form is present in the process in order to protect the rights of the parties.
Constitutional principle: Full defense is a constitutional principle. The prediction is from article 5, item LV, of the CF : “Litigants, in judicial or administrative proceedings, and the accused in general are assured the contradictory and ample defense, with the means and resources inherent to it”.
Alessandro Cristo and Márcio Chaer interview José Joaquim Canotilho: “Problems are in the streets, not in the Constitution ”. Interview. Conjure
Antonio Claudio Mariz de Oliveira: Interview. “Guilt is so embedded in the social soul that there is no room for innocence” By Fernanda Valente. Conjure
Antonio Claudio Mariz de Oliveira: Interview on 04/18/2016 – video.
Conjur: Interview with Lenio Streck . Conjure
Evandro Lins e Silva at the Jury: Oral support at the Jury Court. Dock Street case – historical video.
José Roberto Batochio: Oral support at the STF – video.
José Roberto Batochio: Interview – video.
Luís Carlos Moro : Public Ministry accepted to be the voice of hate, but “all we need is law” . Conjure
Luiz Flávio Borges D’Urso: Prerogatives of the lawyer in the digital age . duraso.com.br.
María Martín: The lawyer of invisible causes . advocacymarizdeoliveira.com.br
José Roberto Batochio: Hail, Caesar, those who are going to die salute you! sentence.painelpolitico.com
Marcos de Vasconcellos, Felipe Luchete: “Processes are now limited to delations and wiretaps, without investigation”. Interview with Mariz de Oliveira . Conjure
Marina Ito. Raúl Zaffaroni, Argentine jurist: “The function of criminal law is to limit punitive power”. Interview . Conjure
Márcio Thomaz Bastos: Tribute from the Brazilian Bar Association – video.
Paulo Sérgio Leite Fernandes: The Question of Legal Fees – video.
Paulo Sérgio Leite Fernandes: Delmanto Family Interview – video
Paulo Sérgio Leite Fernandes: Fábio Delmanto went to India and came back. Interview – video.
Paulo Sérgio Leite Fernandes: Interview with Doctor Luiz Flávio Borges D’Urso – video.
Paulo Sérgio Leite Fernandes: Delmanto Family Interview Video
Técio Lins e Silva: Interview. “Even without evidence, accused of trafficking and theft already begins the condemned process” By Sérgio Rodas. Conjure
Jurisprudence
The absence of a personal subpoena from the Public Defender’s Office or the dative defender about the acts of the process generates, as a rule, its nullity. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).
Judgments:
HC 310908/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/18/2016, DJE 08/26/2016
HC 355769/PR, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/04/2016, DJE 08/09/2016
HC 212710/SP, Rel. Minister Rogerio Schietti Cruz, judged on 05/10/2016, DJE 05/19/2016
HC 334626/SP, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 05/05/2016, DJE 05/16/2016
AgInt no REsp 1270317/ES, Rel. Justice Sebastião Reis Júnior, judged on 05/05/2016, DJE 05/18/2016
HC 340076/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 03/17/2016, DJE 03/29/2016
See also the journals (updated to date of publication):
Jurisprudence Information No. 0560, published on May 3, 2015.
The death of the only lawyer, even if the fact is not communicated to the court, may give rise to the nullity of subpoenas made in his name. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).
Judgments:
HC 360720/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 08/16/2016, DJE 08/26/2016
HC 332960/SP, Rel. Minister Rogerio Schietti Cruz, judged on 06/16/2016, DJE 06/28/2016
HC 279501/SP, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 04/07/2016, DJE 04/15/2016
HC 328254/MS, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 12/10/2015, DJE 02/05/2016
HC 109035/SP, Rel. Minister Nefi Cordeiro, judged on 04/16/2015, DJE 04/27/2015
HC 183113/SP, Rel. Minister Marilza Maynard (TJ/SE Judge), judged on 03/11/2014, DJE 03/31/2014
Immunities and rights of the lawyer
Immunity of the lawyer: It results from article 133 of the CF : “The lawyer is indispensable to the administration of justice, being inviolable for his acts and manifestations in the exercise of his profession, within the limits of the law”.
Lawyer’s rights: According to articles 6 and 7 of Law no. 8.906/94 (Statute of the OAB), there is no hierarchy or subordination between lawyers, magistrates and members of the Public Ministry. The lawyer’s rights are: the inviolability of his office or workplace, as well as his work instruments, his written, electronic, telephone and telematic correspondence, provided they are related to the practice of law; communicate with its 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; enter freely: a) into courtrooms, even beyond the barriers that separate the part reserved for judges; b) in the rooms and premises of hearings, secretariats, notaries, offices of justice, notarial and registration services, and, in the case of police stations and prisons, even outside office hours and regardless of the presence of their holders; c) in any building or premises where there is a judicial office or other public service where the lawyer must perform an act or collect evidence or information useful for the exercise of his professional activity, within working hours or outside of them, and be attended to, provided he is present any server or employee; go directly to the magistrates in the work rooms and offices, regardless of a previously scheduled time or other condition, observing the order of arrival; speak, by order, in any court or tribunal, through summary intervention, to clarify a misunderstanding or doubt arising in relation to facts, documents or statements that influence the judgment, as well as to reply to accusations or censures made against him; examine, in any body of the Judiciary and Legislative Powers, or of the Public Administration in general, case files that have ended or are in progress, even without a power of attorney, when they are not subject to secrecy, ensuring that copies are obtained, with the possibility of taking notes; examine in any police department, even without a power of attorney, flagrante delicto and inquiry, completed or in progress, even if concluded to the authority, being able to copy parts and take notes; have a view of judicial or administrative proceedings of any nature, at a notary or at the competent department, or withdraw them within the legal deadlines; withdraw records of completed proceedings, even without a power of attorney, for a period of ten days; refuse to testify as a witness in a process in which it worked or should work, or on a fact related to a person who is or was a lawyer, even when authorized or requested by the constituent, as well as on a fact that constitutes professional secrecy; withdraw from the premises where he is waiting for the auction for a judicial act, after thirty minutes of the designated time and which the authority that should preside over it has not yet attended, by means of a communication filed with the court. The lawyer will only be able to see cases when they are under the regime of secrecy of justice. He will not be able to withdraw the files when they contain original documents that are difficult to restore. The lawyer has professional immunity, not constituting injury, any manifestation on his part, in the exercise of his activity, in court or out of it, without prejudice to disciplinary sanctions before the OAB, for the excesses he commits (Vide ADIN 1127-8 ).
Lawyer’s arrest: When practicing the profession, the lawyer can only be arrested for a non-bailable crime, and he will have the right to the presence of a representative of the OAB for the drawing up of the record, under penalty of nullity (article 7, paragraph 3, of Law n. 8906/1994).
Doctrine
José Roberto Batochio: Obstruction of justice became a pretext for preemptive arrest . Conjure
Dias Toffoli: The AGU in defense of the State and the citizen . Conjure
Pedro Canário: “ Advocacy has become proletarianized and is no longer the breadbasket of political elites “ . Conjure
Roberto Delmanto: Criminal Lawyer not to be confused with Your Client . Conjure
Raul Haidar: OAB’s Ethics Court must be independent . Conjure
Raul Haidar: I lived causes and causes in the 20 years of ConJur, but never chaos . Conjure .
Márcio Chaer: Colleagues of Márcio Thomaz Bastos recall the criminalist’s career . Conjure
Lenio Luiz Streck: Breach of lawyer confidentiality! “Kill all the lawyers”, said Dick! Conjure
Jurisprudence:
The rule of inviolability of the lawyer’s office is not absolute : “Environmental listening and site exploration. Capturing optical and acoustic signals. Law firm. Entrance of the police authority, at night, for the installation of equipment. Measures authorized by court decision. Home invasion. No characterization. (…) Intelligence of article 5, X and XI, of the CF; article 150, § 4, III, of the CP; and article 7, II, of Law 8.906/1994 (…). The inviolability of the law firm does not operate when the lawyer himself is suspected of committing a crime, especially conceived and consummated within the scope of that workplace, under the pretext of exercising the profession” (Inq 2.424, Reporting Min. Cezar Peluso, judgment on 26-11-2008, Plenary, DJE of 26-3-20).
Fortuitous finding of evidence in the fulfillment of a search and seizure warrant at a law firm: It is lawful to seize, at a law firm, drugs and firearms, in theory belonging to a lawyer, in the event that another lawyer has witnessed the compliance with the diligence at the request of the police, even though the search and seizure warrant was issued to seize a firearm allegedly belonging to an intern at the office – and not to the lawyer – and even though the said warrant does not expressly indicate a representative of the OAB location for monitoring the due diligence ( STJ, RHC 39.412-SP, Judge Felix Fischer, judged on 3/3/2015, DJe 3/17/2015 – Newsletter 557 ).
Hypothesis in which the lack of a personal subpoena of the dative defender does not generate recognition of nullity: The subpoena of the dative defender only by the official press does not imply recognition of nullity if he has expressly opted for this modality of communication of procedural acts, declining the prerogative of being summoned personally ( STJ, HC 311.676-SP, Judge Jorge Mussi, judged on 4/16/2015, DJe 4/29/2015 – Newsletter 560 ).
Preventive custody of a lawyer suspended from the OAB and General Staff room: Once the preventive detention of a lawyer has been decreed, he will not be entitled to provisional collection in a General Staff room if he is suspended from the staff of the OAB ( STJ, HC 368.393-MG, Rapporteur Min. Maria Thereza De Assis Moura, judged on 9/20/2016, DJe 9/30/2016 – Newsletter n. 591 ).
The guarantee of secrecy of communications between lawyer and client does not confer immunity for the commission of crimes in the practice of law, being lawful the collection of evidence in telephone interception duly authorized and motivated by the judicial authority. Source: Jurisprudence in theses (STJ).
Judgments:
RMS 58898/SE, Rel. Minister Laurita Vaz, Sixth Panel, judged on 11/08/2018, DJE 11/23/2018
RHC 92891/RR, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 09/25/2018, DJE 10/03/2018
RHC 73498/DF, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 08/14/2018, DJE 08/23/2018
REsp 1465966/PE, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 10/10/2017, DJE 10/19/2017
AgRg in AREsp 457522/SC, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 11/10/2015, DJE 11/25/2015
RHC 51487/SP, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 06/23/2015, DJE 09/24/2015
Access to the complete data obtained in compliance with the search warrant: after the search and seizure is carried out, although the report on the result of the diligence is restricted to the elements related to the facts under investigation, the defense must be assured access to the complete data obtained in compliance with the court order ( RHC 114.683/RJ , Reporting Judge Rogério Schietti Cruz, Sixth Panel, unanimously, judged on 04/13/2021).
Fishing expedition: In addition to violating the prerogatives of law, the initiation of broad, unspecific and unreasonable search and seizure measures to the detriment of lawyers can demonstrate the practice of “fishing expedition”. The jurisprudence of the STF grants a strict and rigid interpretation to the norms that make search and seizure possible, especially when directed at lawyers in the exercise of their profession. In the present situation, the legal requirements or the prerogatives of the lawyer were not observed, with a wide outbreak of measures that aimed to “fish” evidence against the accused lawyers and possible new investigated ones. It should be noted that, by granting the search and seizure, the requested authority did not demonstrate the specific indispensability of the measure for processing the facts (Rcl 43479/RJ, rapporteur Min. Gilmar Mendes, judgment on 8.10.2021 ).
The Public Defender’s Office
Public Defender’s Office: Article 134 of the Federal Constitution stipulates that the Public Defender’s Office is a permanent institution, essential to the jurisdictional function of the State, incumbent upon it, as an expression and instrument of the democratic regime, fundamentally, legal guidance, the promotion of rights human rights and the defense, at all levels, judicial and extrajudicial, of individual and collective rights, integrally and free of charge, to those in need, in the form of item LXXIV of article 5 of this Federal Constitution (Wording provided by Constitutional Amendment No. 80 , of 2014) . Complementary Law n. 80, of January 12, 1994 organizes the Public Defender’s Office of the Union, the Federal District and the Territories and prescribes general norms for its organization in the States. Article 3 of that law deals with the objectives of the Public Defender’s Office. Article 4 deals with institutional functions, including providing legal guidance and defending those in need, at all levels. Articles 43 and 44 establish the guarantees and prerogatives of the Public Defender.
Double deadlines for the Public Defender: Article 44, item I of Complementary Law n. 80/94 , which are the prerogatives of the members of the Public Defender’s Office of the Union: I – to receive, even when necessary, upon delivery of the records with a view, personal subpoena in any process and degree of jurisdiction or administrative instance, counting them in double all deadlines.
Doctrine
Mario Lima Wu Filho. The essential Justice between the Public Prosecutor’s Office and the Public Defender’s Office. Anadep.
Rogério dos Reis Devisate. Advocacy, Advocacy and MP are different . Anadep.
Jurisprudence
Active legitimacy of the public defender’s office to file a public civil action: Minister Cármen Lúcia, in her vote, launches questions and, at the end, responds: “who would be interested in restricting or limiting, to the meager instruments of civil procedural law, the protection of the hyposufficient (emphasis added) the diffuse and homogeneous individual rights of consumers, people with special needs and the elderly)? Who would be interested in limiting the instruments and means of securing the rights recognized in the Constitution itself in favor of the underserved who suffer so many limitations? Why only the Public Defender’s Office should be excluded from the list of art. 5 of Law no. 7,347/1985? To anyone committed to the construction and densification of the norms that make up the constitutional system of the Democratic State of Law” (Justice Cármen Lúcia – STF – motion for clarification in the direct action of unconstitutionality 3.941 – 2018 ).
Legitimacy of the Public Defender’s Office to file a public civil action: The Public Defender’s Office has the legitimacy to file a public civil action in defense of diffuse, collective or homogeneous individual interests ( ADI 3.943, rel. min. Cármen Lúcia, judgment on 5/6/2015 , judgment published in the DJE of 6-8-2015 – Newsletter 784, Plenary).
General Public Defender who fails to comply with the judicial request for the appointment of a defender: The crime of disobedience (art. 330 of the CP) does not constitute the conduct of a General Public Defender who fails to comply with the judicial request for the appointment of a public defender to act in a given criminal action (STJ, HC 310.901-SC, Judge Nefi Cordeiro, judged on 6/16/2016, DJe 6/28/2016 – Newsletter n. 586).
The initial term for counting the deadline for challenging a decision to the Ombudsman’s Office is the date of delivery of the records to its division: Summons of the Public Defender’s Office at a hearing. Deadline count. Start. Need to send the records to the institution. The date of delivery of the records to the Public Defender’s Office administrative division is the initial term for counting the period for contesting a judicial decision by the institution, regardless of the subpoena of the act at a hearing ( STJ, HC 296.759-RS, Reporting Min. Rogério Schietti Cruz , by majority, judged on 8/23/2017, DJe 9/21/2017 – Newsletter 611 ).
The effective defense
The mandatory presence of a defender: The presence of a defender is mandatory in all criminal proceedings. The accused has the right to appoint his lawyer. If he is poor, if he is absent or on the run, or even if he does not want a lawyer to defend him, the judge will appoint one. It is from the wording of article 263 that, if the accused does not have one, he will be appointed defender by the judge, safeguarding his right to, at any time, appoint another of his trust, or to defend himself, in case have license.
Need for an effective defense: The sole paragraph of the provision under review seeks to ensure that, in cases where the defender has not been chosen by the defendant, he promotes an effective and efficient defense. This does not mean that the constituted lawyer does not also have this burden.
Nullity due to absence and deficiency of the defense: It is not enough for the defendant to appoint or be assigned a dative lawyer. The developed defense cannot be limited to being merely formal. It is essential that it be effective, under penalty of nullity of the process. The causes of nullity due to absence and deficiency of defense are examined in our notes to article 563, III, “c”.
Defender’s failure to appear for the hearing: If the defendant’s chosen counsel (constituted defender), or the judge’s designated counsel, fails to appear at the designated hearing (and does not justify, prior to the start of the hearing, the impossibility of attending), the The judge will not determine the postponement of any act of the process, and must appoint a substitute defender, even if provisionally or only for the effect of the act ( article 265, paragraph 2 ).
Knowledge by the lawyer of the content of the pre-procedural investigation: This is the wording of Binding Precedent 14 of the STF : “It is the defender’s right, in the interest of the defendant, to have broad access to the evidence that, already documented in an investigative procedure carried out by a body with judicial police competence, concern the exercise of the right of defense ” (see jurisprudence subsequent to the publication of the Precedent ).
Constituted defender: The constituted defender is the one chosen and hired by the accused. He acts with power of attorney granted by the accused. The power of attorney for criminal defense does not require special powers. In only a few acts of the process are special powers required, such as granting pardon, for example.
By default: The process will continue without the presence of the accused who, summoned or summoned personally for any act, fails to appear without justifiable reason, or, in the case of a change of residence, fails to communicate the new address to the court (article 367 ) . Even if the accused is in default, his defender will continue with the obligation to be present at all acts of the proceedings.
Investigation and defensive action in the investigation: On the defensive investigation and on the defensive action in the investigation phase, see the title Listening to the accused. Defensive investigation (item V) and the title Hear the accused. The investigation in favor of the investigated (item V , in comments to article 6o.
Doctrine
Aury Lopes Jr., Alexandre Morais da Rosa and Gabriel Bulhões: Defensive investigation: power-duty of advocacy and citizenship law. Conjure An exceptional article by the duo Aury/Alexandre. Both are always very creative. We transcribe some passages: “It is a naive or malicious reductionism to say that the preliminary investigation does not deserve greater concern because it is only an administrative, pre-procedural and inquisitorial procedure, or even that there are no nullities in the police investigation (so it is a free zone for illegalities?). Now, it is enough to consider that based on the acts of the investigation it is possible to withdraw all the assets of a person (secure measures, for example); but her freedom can also be withdrawn (temporary arrest and preventive detention); then — paraphrasing Ortega y Gasset — if you can remove the “I” and “my circumstances” it is because you can remove everything! (…) Especially because impartiality is an artificial technical construction of the process, as an exclusive attribute of the “judge”, not of the police nor of the Public Prosecutor’s Office in criminal proceedings (another very common confusion or distortion). Therefore, talking about the impartiality of the police or the MP in criminal proceedings is a serious conceptual mistake.” This placement being perfect, the placement that follows in those of the authors, there is no rule in the legal system that prohibits the lawyer from interviewing the witnesses in advance: “It is enough to see the wrong understanding of some, for example, in the sense that the lawyer could not have contact or interview witnesses before the hearing. Why, how absurd! There is an age-old distance between trying to find out what knowledge a given person has about a criminal case, to decide whether to list it or not, whether to question it or not, etc., and embarrassing, threatening or inducing false statements ,
citation by public notice
Summons by public notice and suspension of proceedings: Article 366 provides that, if the accused, summoned by public notice, does not appear or appoint a lawyer, the proceedings and the course of the statute of limitations will be suspended, and the judge may determine the anticipated production of the evidence considered urgent and, if applicable, order preventive detention, pursuant to the provisions of article 312 . If the anticipated production of evidence is ordered, a defender must be appointed for follow-up.
Defendant summoned by public notice and the beginning of the period for the defense: In the ordinary and summary procedures, once the complaint or complaint is offered, the judge, if he does not reject it outright, will receive it and order the summons of the accused to respond to the accusation, by in writing, within ten days – article 396 (Wording provided by Law No. 11,719, of 2008). In the case of citation by public notice, the period for the defense will begin to flow from the personal appearance of the accused or the appointed defender – article 396 and its sole paragraph (See title Accused located after the citation by public notice in comments to article 396).
