Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 263. If the accused does not have one, the judge will appoint him as a defender, safeguarding his right to, at any time, appoint another person of his trust, or to defend himself, if he has qualifications. 
Single paragraph. The accused, who is not poor, will be obliged to pay the attorney’s fees, arbitrated by the judge.

defender types

Public defender, dative defender, constituted defender, technical self-defense and  ad hoc defender :  Public defender  is that lawyer who belongs to the public defender’s staff. Its main function is to defend defendants who do not have the resources to pay a lawyer. If the accused has resources but does not have a lawyer, the judge appoints one. This appointed lawyer is called the  Dative Defender . It is not the responsibility of the Public Defender’s Office to defend people who are financially able to pay lawyers. The lawyer appointed by the magistrate is entitled to receive fees to be set by the judge in the case. Where there is no public defender, dative counsel can also be appointed if the defendant is poor, and the fees must be paid by the State. A constituted defender  is the one hired by the accused and who acts upon presentation of a power of attorney. Self-defense  is that made by the accused, collaborating with the technical defense carried out by the lawyer. Technical self-defense is called that made by the accused himself when he has technical qualifications, that is, when he is a lawyer. Ad hoc advocate  is the advocate for the act. If the defendant’s main defender does not appear in a given act, the judge appoints an  ad hoc defender , a defender only to carry out the act. The titular lawyer, dative, Public Defender or constituted continues in the defense of the defendant. He is not replaced by simply appointing an ad hoc defender  .


Rescinded powers of attorney and nullity of trial:  The conviction of an accused person who, on the eve of the judgment in which he was sentenced, revoked the powers granted to accredited lawyers and, as a result, was deprived of technical defense (HC 118.856/SP , rel. min. Marco Aurélio, judged on 10-6-2014, judgment published in the DJE of 26-9-2014  – Newsletter 750, First Panel).

Incompatibility of the simultaneous exercise of police activities of any nature with the profession of lawyer:  The legislator may establish a clause for the incompatibility of the simultaneous exercise of police activities of any nature with the profession of lawyer, considering that it is harmful to the relevant functions that each of these categories exercises ( ADI 3.541/DF, rel. Min. Dias Toffoli, judged on 2/12/2014, judgment published in the DJE of 3/24/2014  – Newsletter 735, Plenary).

appointment of defender

Preliminary defense and defender:  If the preliminary answer is not presented within the legal period, or if the accused, summoned, does not constitute a defender, the judge will appoint a defender to offer it, granting him/her to review the file for ten days (articles 396 and 396  –  A , paragraph 2 ).

Constituted defender who renounces the mandate:  If the constituted defender renounces the mandate, the judge cannot appoint another one immediately, under penalty of nullity. He must subpoena the accused, granting him time to constitute another. If no other is constituted, then the magistrate will nominate a defender.

Ad hoc defender  :  It is the defender for the act, and only for the act, such as participation in a hearing and presentation of some defensive procedural piece. If the accused’s lawyer fails to perform any duty that the judge deems important for the effectiveness of the full constitutional defense, the magistrate must appoint an  ad hoc defender  (for the act). This defender will carry out the act, with the titular lawyer remaining in the exercise of the defense.

Conflicting Defenses, Different Defenders:  Accused with conflicting defenses cannot be defended by the same attorney. Conflicting defenses sponsored by the same defender constitute cause for nullity.


Minimum amount of attorney fees arbitrated in favor of the dative defender:  The judicial arbitration of attorney fees to the dative defender appointed to officiate in criminal proceedings must observe the minimum values ​​established in the OAB table, considering the degree of zeal of the professional and the difficulty of the cause as guiding parameters of the quantum ( REsp 1,377,798-ES, Judge Rogerio Schietti Cruz, judged on 8/19/2014 – Newsletter nº 545 ).

Suspension of a lawyer’s registration with the OAB impedes the hearing of the habeas corpus appeal:  The suspension of a lawyer’s registration with the Brazilian Bar Association (OAB) – even if he or she has originally lodged the habeas corpus – also prevents the subsequent appeal from being heard it presented ( RHC 121.722/MG, rel. Min. Ricardo Lewandowski, judged on 5/20/2014, judgment published in the DJE of 10/6/2014  – Newsletter 747, Second Panel).

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).

Once the inertia of the lawyer constituted to present the reasons for the criminal appeal has been verified, the defendant must be summoned to appoint a new attorney, before proceeding with the appointment of a defender to exercise the contradictory. Source: jurisprudence in theses (STJ).


HC 302586/RN, Rel. Minister Rogerio Schietti Cruz, judged on 05/10/2016, DJE 05/19/2016

HC 345873/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 04/19/2016, DJE 04/29/2016

HC 301099/AM, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 03/01/2016, DJE 03/07/2016

HC 269912/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 11/03/2015, DJE 11/12/2015

RHC 025736/MS, Rel. Minister Nefi Cordeiro, judged on 06/09/2015, DJE 08/03/2015

AgRg no HC 179776/ES, Rel. Minister Sebastião Reis Júnior, judged on 05/13/2014, DJE 06/02/2014

See also the journals (updated to date of publication):

Jurisprudence Information No. 0506, published on October 17, 2012.

The judgment of the appeal is void if, after the resignation of the sole defender is manifested in the records, the defendant was not previously summoned to appoint another. (Precedent n. 708/STF). Source: jurisprudence in theses (STJ).


HC 329263/BA, Rel. Minister Sebastião Reis Júnior, Rapporteur by Judgment Minister Rogerio Schietti Cruz, judged on 06/16/2016, DJE 07/01/2016

HC 100524/PE, Rel. Minister Nefi Cordeiro, judged on 10/20/2015, DJE 11/06/2015

HC 300490/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/03/2015, DJE 09/14/2015

HC 258339/MG, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 04/28/2015, DJE 05/18/2015

HC 207119/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 03/27/2014, DJE 05/22/2014

RHC 037159/PA, Rel. Minister Laurita Vaz, Fifth Panel, judged on 04/24/2014, DJE 05/08/2014

Criteria for setting the fees for a dative defender ( Repetitive theme: 984 ): 1st) The fee tables drawn up unilaterally by the Sectional Councils of the OAB do not bind the magistrate at the time of arbitrating the value of the remuneration to which the dative defender who acts in the criminal proceedings; they serve as a reference for establishing a value that is fair and that reflects the work performed by the lawyer;
2nd) In cases where the judge of the cause considers the amount indicated in the OAB table to be disproportionate in relation to the efforts made by the dative defender for the procedural acts performed, he may, with good reason, arbitrate another amount;
3rd) The tables produced by agreement between the Public Power, the Public Defender’s Office and the section of the OAB are, however, binding.
4th) Given the provisions of art. 105, sole paragraph, II, of the Constitution of the Republic, the Table of Fees of the Federal Justice is binding, as well as similar tables instituted, eventually, by the competent bodies of the Justices of the States and the Federal District, in the form of articles 96, I , and 125, § 1, final part, of the Constitution of the Republic.


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