Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 266. The constitution of a defender will not depend on a power of  attorney, if the accused indicates it during the interrogation.

Constitution of the defender at the hearing

The defender’s constitution  apud acta :  The defender’s constitution  apud acta  (launched in the minutes) is valid for any hearing. In the case of an instruction and trial hearing, considering that the interrogation is carried out after the witness evidence has been collected ( article 400 ), contrary to the previous system in which it was the first act of the hearing, the appointment of the lawyer must be made at the beginning of the hearing. Therefore, the constitution of a defender by simple oral indication of the accused in a hearing continues to exist, with the only difference, in relation to the previous system, that it is done at the beginning of the hearing works (if one has not been constituted for the presentation of the preliminary defense by occasion of citation –  Article 396 ).


Appointment of the Juridical Practice Nucleus in court. Letter of attorney. Joined. Unnecessity: Inapplicability of Precedent 115/STJ. The judicial appointment of a Nucleus of Legal Practice to sponsor the defendant’s defense does not require the filing of a power of attorney. The judicial appointment of the Nucleus of Legal Practice to sponsor the defense of the defendant, however, does not require the attachment of a power of attorney, as there is no action provoked by the assisted person, but rather the exercise of the public role by court order, therefore, the incidence of the Precedent is ruled out n. 115/STJ. In addition, the demand for a power of attorney is not admissible, since it is not uncommon for the attorney-in-fact to have contact with the accused, given that maintaining the requirement for a mandate would cause serious damage to the defense of the needy population, making access to justice unfeasible ( Newsletter n. 624, EAREsp 798.496-DF, Reporting Minister Nefi Cordeiro, unanimously, judged on 04/11/2018.


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