Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 307 CPP – Act committed in the presence of the authority.

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Art. 307. When the act is committed in the presence of the authority, or  against it, in the exercise of its functions, the record will contain the narration of this fact, the arrest warrant, the statements made by the prisoner and the testimonies of the witnesses, everything being signed by the authority, the prisoner and the witnesses and forwarded immediately to the judge who is responsible for having knowledge of the criminal fact, if not the authority that presided over the case.

The act is committed in the presence of the authority

The narrative of the fact:  In this type of arrest in flagrante delicto, there is no driver. There is only the authority that gives the voice of arrest. Then there will not be an authority listening to a conductor. Nor, of course, will authority listen to itself. What she, the authority, will do is narrate the fact, report it, prosecute it, in her own words. In the case of a videotaped audience, we see no need, for obvious reasons, for the fact and its circumstances to be narrated. It is enough for the authority to issue an arrest warrant, briefly stating the reasons for the order.

Competent authorities to draw up the record:  It can be the police chief, the judge. There is, according to  Precedent 397 of the STF  ( also see jurisprudence subsequent to the publication of the Precedent ), the police power of the Chamber of Deputies and the Federal Senate; in the case of a crime committed on its premises, it includes, depending on the bylaws, the arrest in flagrante delicto of the accused and the carrying out of the investigation. In addition to the police authority, the judge is also competent to draw up the arrest warrant in flagrante delicto when the offense is committed in his presence ( article 307). Register that only the judge, state or federal, with criminal jurisdiction (including electoral and military) can preside over the case. The labor judge and the civil court judge, for example, who do not have criminal jurisdiction, are not authorized to preside over the case. They can, yes, only give a voice of arrest and hand over the detainee to the police authority. See  article 4 , which contains express authorization, if there is a legal provision, for other authorities to exercise the judicial police.

The magistrate cannot preside over the judicial process:  The judge who draws up the flagrante delicto cannot preside over the process that eventually follows, either because he has testified ( article 252, II  ) or because he is a party (same provision, item IV). The accusatory constitutional principle does not prevent the judge from drawing up the arrest warrant in flagrante delicto based on a fact that occurred in his presence. What it prohibits is that the judge presides over the process derived from the report.

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