Art. 310. After receiving the arrest warrant in flagrante delicto, within a maximum period of up to 24 (twenty-four) hours after the arrest is made, the judge must hold a custody hearing in the presence of the accused, his appointed lawyer or member of the Public Defender’s Office and the member of the Public Prosecutor’s Office , and, at this hearing, the judge must, based on
: or (Included by Law No. 12,403 of 2011).
II – convert flagrante delicto into preventive arrest, when the requirements contained in article 312 of this Code are present , and precautionary measures other than imprisonment prove to be inadequate or insufficient; or (Included by Law No. 12,403 of 2011).
III – grant provisional release, with or without bail. (Included by Law No. 12,403 of 2011).
§ 1 If the judge verifies, by the arrest warrant in flagrante delicto, that the agent committed the act under any of the conditions set out in items I, II or III of the caput of art. 23 of Decree-Law No. 2,848, of December 7, 1940 (Criminal Code) , may, justifiably, grant the accused provisional release, by means of a term of mandatory attendance at all procedural acts, under penalty of revocation. (Renumbered from the sole paragraph by Law No. 13,964, of 2019) (Effective)
§ 2 If the judge verifies that the agent is a repeat offender or that he is part of an armed criminal organization or militia, or that he is carrying a firearm for restricted use, he must deny provisional release, with or without precautionary measures. (Included by Law No. 13,964, of 2019) (Effective)
§ 3 The authority that gave cause, without good reason, to the non-holding of the custody hearing within the period established in the caput of this article will respond administratively, civilly and criminally for the omission. (Included by Law No. 13,964, of 2019) (Effective)
§ 4º After 24 (twenty-four) hours have elapsed after the expiry of the period established in the caput of this article, the failure to hold a custody hearing without suitable grounds will also lead to the illegality of the arrest, to be relaxed by the competent authority, without prejudice to the possibility of immediate order of preventive detention. (Included by Law No. 13,964, of 2019) (Effective) – paragraph suspended by monocratic decision contained in ADIs 6,298, 6,299, 6,300 .
Grounds for the decision and measures taken by the judge upon receiving the arrest warrant
Need for reasoning for the decision: In its previous wording, article 310 of the CPP did not require reasoning to keep the defendant arrested in flagrante delicto. The dispatch was just released: I approve the flagrante delicto . The unconstitutionality was evident, since article 93, IX, of the CF , prescribes that “all the judgments of the organs of the Judiciary Power will be public, and all decisions will be justified”. The reasoning of judicial decisions constitutes a constitutional mandate. Whether to relax illegal imprisonment, or to convert arrest in flagrante delicto into pre-trial detention, or to grant provisional release, the respective decision must always be motivated, under penalty of recognizing its nullity. Article 282, paragraph 6, establishes that preventive detention will only be determined when its replacement by another precautionary measure is not appropriate, and the non-appropriation of replacement by another precautionary measure must be justified on an individual basis in the elements present in the concrete case. Similarly, Article 315 states that the decision to enact, replace or deny pre-trial detention will always be motivated and substantiated. In turn, article 564, item V , provides for the nullity of a decision lacking grounds.
Measures taken by the judge upon receiving the arrest warrant in flagrante delicto: Upon receipt of the records, the judge must schedule a custody hearing within a maximum period of 48 hours. It then communicates the date designated to the police authority (so that it arranges for the prisoner’s presentation) and notifies the parties. The records must be available to the parties for examination until the hearing, conclusive (but available), at a notary’s office or on the world wide web. Before assigning a custody hearing, the judge, if he understands that this is the case of immediate disregard (when he immediately releases the accused at liberty or replaces arrest in flagrante delicto with non-prison precautionary measure), will launch a decision in this regard and issue an order of compliance. At the custody hearing, scheduled for up to 48 hours after receipt of the report, at the request of the party or representation of the police authority – and after hearing the defense,articles 312 and 313 ) –, must convert it into preventive detention. Preventive measures can only be decreed in the event that the various non-prison precautionary measures prove to be inadequate or insufficient ( articles 319 and 282, paragraph 6 ). However, if insufficient or inadequate, the decree of preventive detention must be issued. In the absence of the requirements that authorize the preventive, he must release the prisoner.
Replacement of the flagrante delicto by the preventive one. Need for an application: With regard to the preventive measure, the question that arises is whether it can be decreed ex officio, or not, by the guarantees judge, upon receiving the arrest warrant in flagrante delicto and on the occasion of the custody hearing. Article 310 is unclear. It does not say that you can make the flagrant conversion into a preventive one. Nor does it say that it cannot. Strictly speaking, article 310 is completed with articles 282 , paragraph 2, article 311 , and also with article 3o-B, item V. The new wording of article 282 paragraph 2, which extends to all precautionary measures, including preventive detention, restricted the judge’s power by establishing that, whether in the course of the criminal investigation or in the procedural phase, precautionary measures can only be applied upon request of the MP or of the police authority. Jurisprudence has always been in the sense that arrest in flagrante delicto can be transformed into preventive arrest regardless of the request. This understanding, with the advent of Law n. 13,964 is to be amended. Preventive is not a mere substitution of the flagrante delicto, that is to say, there is no simple substitution of one precautionary measure for another. There is the imposition of a new precautionary measure. If someone replaces blue pants with white ones, he has new pants. Changing a desktop computer to a laptop, you have a new computer. They are different essences. The essence of flagrante delicto, its requirements, its consequences, are completely different from preventive detention. It’s a new prison. New and much more serious. The flagrante delicto presupposes a state of criminal flagrance, the preventive one, necessity. The flagrant lasts days, the preventive, months. Therefore, the argument that it is a simple replacement and that, therefore, there would be no need for a request by the party is not correct.
The lack of protection does not depend on the party’s request: With regard to granting bail or any other non-prison precaution, there is no need for a party’s request. If the accused was arrested in flagrante delicto (more burdensome precautionary measure) and is released through the application of a non-prison precautionary measure (less burdensome precautionary measure), the judicial action took place in the opposite direction of the inquisitority, that is to say, there was no precautionary measure in the action, but rather an oversight. The judge cannot rule without a request from the party. Take care, you can. It constitutes a sovereign decision of the magistrate.
Video
Flavio Meirelles Medeiros: Pretrial detention carried out at home
Flavio Meirelles Medeiros: Pretrial detention in six stages .
Flavio Meirelles Medeiros: Nullities of the investigation leading to the illegality of the preventive measure and the suspension of the criminal action .
Doctrine
Gustavo Badaró: Prison in flagrante delicto and provisional freedom in the Criminal Procedure Code: origins, changes and future of a complicated relationship .
Jurisprudence
After the conversion of arrest in flagrante delicto into preventive, the allegation of nullity that may exist in relation to the absence of a custody hearing is overcome. Source: Jurisprudence in theses (STJ).
Judgments:
RHC 103333/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/06/2018, DJE 12/12/2018
HC 474093/SP, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 12/04/2018, DJE 02/04/2019
RHC 98748/RS, Rel. Minister Laurita Vaz, Sixth Panel, judged on 12/04/2018, DJE 12/19/2018
HC 423564/SC, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 11/13/2018, DJE 11/28/2018
RHC 90346/MG, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 11/06/2018, DJE 11/14/2018
RHC 103097/MG, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 10/04/2018, DJE 10/15/2018
Release of imprisonment does not make res judicata: Decision to release prison handed down at a custody or presentation hearing does not make res judicata ( HC 157.306, rel. min. Luiz Fux, DJE of 1-3-2019 ).
Feasibility of the ex officio conversion of flagrante delicto into preventive: Even after the enactment of Law n. 13.964/2019 (Anti-Crime Package), art. 310, II, of the Code of Criminal Procedure authorizes the conversion, ex officio by the court, of arrest in flagrante delicto into preventive ( AgRg no HC 611.940-SC , Rel. Min. Reynaldo Soares da Fonseca, Fifth Panel, unanimously, judged on 09/22/2020, DJe 09/28/2020).
Conversion of arrest in flagrante delicto into preventive: Even after the innovations brought by the Anti-Crime Package (Law n. 13.964/2019), there is no illegality in the conversion of arrest in flagrante into preventive, ex officio, by the magistrate ( HC 605.305- MG , Reporting Judge Nefi Cordeiro, Reporting Judge Antonio Saldanha Palheiro, Sixth Panel, by majority, judged on 10/06/2020, DJe 10/27/2020).
Infeasibility of the ex officio conversion of the flagrante delicto into preventive: After the enactment of Law n. 13.964/2019, it is not possible to convert ex officio arrest in flagrante delicto into preventive, even in situations where there is no custody hearing ( RHC 131.263-GO , Judge Sebastião Reis Júnior, Third Section, by majority, judged in 02/24/2021).
Infeasibility of the ex officio conversion of flagrante delicto into preventive: Based on the innovations brought by the Anti-Crime Package, the ex officio conversion of arrest in flagrante into preventive became inadmissible ( HC 590.039-GO , Reporting Minister Ribeiro Dantas, Quinta Turma , unanimously, judged on 10/20/2020, DJe 10/29/2020).
Infeasibility of the ex officio conversion of the flagrante delicto into preventive : After the enactment of Law n. 13.964/2019, it is not possible to convert ex-officio arrest in flagrante delicto into preventive, even in situations where there is no custody hearing ( RHC 131.263-GO , Judge Sebastião Reis Júnior, Third Section, by majority, judged on 24 /02/2021).
Subsequent request for preventive detention: The subsequent request of the police authority for precautionary segregation or manifestation of the Public Prosecutor’s Office in favor of preventive detention remedy the defect of non-compliance with the formality of the prior request ( AgRg no RHC 136.708/MS , Reporting Min. Felix Fischer, Fifth Panel , unanimously, judged on 03/11/2021).
Conversion only with express request: In the context of the custody hearing, the conversion of arrest in flagrante delicto into preventive detention is legitimate only if and when there is an express and unequivocal request by the Public Ministry, the police authority or, as the case may be, the plaintiff or Parquet’s assistant . The reform introduced by Law 13.964/2019 (“Anti-Crime Law”) modified the discipline regarding precautionary measures. By deleting the expression “by ex officio” that appeared in art. 282, §§ 2 and 4, and art. 311 of the CPP, the law absolutely prohibited the enactment of preventive detention without prior request. The possibility for the magistrate to order, sponte sua , the imposition of preventive detention was suppressed. Thus, it is not possible to enact ex officio of pre-trial detention in any situation (in court or in the course of a criminal investigation), including in the context of a custody hearing. It became unfeasible to convert an official letter, even in the case referred to in art. 310, II, of the CPP (( HC 188888/MG, rel. Min. Celso de Mello, judgment on 10/6/2020 ).
Fulfillment of the conditions of article 313
To convert it into preventive, it is necessary to fulfill the condition of article 313: Item II of article 310 establishes that the judge may convert arrest in flagrante delicto into preventive arrest when the requirements contained in article 312 of this Code are met. It does not mention Article 313. In view of this omission, there are those who maintain that the conditions of Article 313 would not be applicable when converting the flagrante delicto into preventive. Renato Brasileiro, in comments on Article 310 of the CPP, rightly considers this interpretation to be completely absurd. It argues that it cannot be admitted that the legal system has different types of preventive detention, one conditioned to the observance of article 313 of the CPP, and the other not: “(…) it cannot be admitted that the luck (or misfortune) of a person in criminal proceedings is conditioned to the simple fact that he or she has been arrested in flagrante delicto or not. Indeed, if the previous current is accepted, the agent detained in flagrante delicto could have his arrest converted into preventive, regardless of the observance of article 313. However, if he had managed to escape, avoiding the act, his preventive could not be decreed. What is the logical and reasonable criterion capable of justifying such discrimination? We couldn’t find it. Third, it is well known that grammatical interpretation is often the worst possible interpretation. A systematic interpretation should always be sought. It proves unfeasible, therefore, to want to conclude that article 313 does not need to be observed at the time of conversion due to the simple fact that item II of art. 310 of the CPP does not mention it. Similar to art. 310, II, of the CPP, when referring to the decree of preventive detention of the accused cited by public notice who did not appear nor constitute a lawyer,
Deadline for the judge to decide, custody hearing, illegality of the act and preventive decree
Deadline for the judge to decide: The deadline of 24 hours after the arrest is the deadline for the judge to receive the arrest report in flagrante delicto. There is no express provision for a period for the judge to hold a custody hearing and decide on the measures established in this device. The 48-hour period allowed for the judge to rule on bail is applicable when it cannot be granted by the police authority ( article 322, sole paragraph ). This period must start from the moment the judge receives the arrest warrant in flagrante delicto. Notwithstanding this understanding, resolution n. 213 of the CNJ, in its article 1establishes that every person arrested in flagrante delicto must be presented, within 24 hours of the communication of the flagrante delicto, to the competent judicial authority. We are aware of the need to hurry to examine the legality of this arrest. However, on the other hand, it is necessary that the parties have time to examine the evidentiary elements contained in the investigation with a view to, through adversarial proceedings, collaborating with the court in the decision about freedom. Article 7, item 5, of the American Convention on Human Rights(Pact of San José de Costa Rica) does not specify the deadline. Neither does article 9, item 3 of the International Covenant on Civil and Political Rights. Both texts make use of the prisoner’s presentation without delay. The 24-hour deadline for deciding on such a serious matter, which is freedom, is very short. It is necessary that the parties have access to the arrest warrant in flagrante delicto and manifest themselves. Therefore, we understand that the deadline is 48 hours ( article 322, sole paragraph ), counted from the moment the judge receives the arrest warrant in flagrante delicto. Moreover, it must be obligatorily given to the parties. First, because there cannot be a conversion of a flagrante delicto into a preventive one without a substantiated request from the Public Prosecutor’s Office (see title Substitution of a flagrante delicto for a preventive one .Need for application in the subheading above). Two, because the right to adversary proceedings for the purpose of applying preventive measures is legally supported (Article 282, paragraph 3 ) . If the judge judges in a hurry, without effective collaboration of the parties, instead of benefiting the accused, the effect may be the opposite, that is, harming him.
No need for a custody hearing to remove the precaution: To remove the precaution (impose a less onerous precautionary measure), that is, to release the prisoner, even if applying a non-prison precautionary measure, there is no need for a custody hearing. Nor is a prior manifestation of the parties required. On the subject, see the subheading Disregard regardless of the party’s request in the heading Application and non-compliance , in comments on article 282.
Normative sources of the custody hearing: The custody hearing has some normative sources. Among them, the American Convention on Human Rights, which, in Article 7(5 ), establishes that “every person detained or detained must be brought, without delay, before a judge or other authority authorized by law to exercise judicial functions and has the right to to be tried within a reasonable period of time or to be released, without prejudice to the continuation of the proceedings. His freedom may be conditioned to guarantees that ensure his appearance in court”, and the International Covenant on Civil and Political Rights, in whose article 9.3. stipulates that “any person arrested or imprisoned on account of a criminal offense shall be brought without delay before the judge or other authority empowered by law to exercise judicial functions and shall have the right to be tried within a reasonable time or to be placed in freedom. Pretrial detention of persons awaiting trial should not be the general rule, but release may be subject to guarantees that ensure the attendance of the person in question at the hearing, at all acts of the proceeding and, if necessary, for the execution of the sentence. verdict”. In Brazil, there is still no law regulating the custody hearing. There is, however, the Bill n. 554/2011 of the Federal Senate, amending Article 306. In 2015, under the Presidency of Minister Ricardo Lewandowski, the National Council of Justice issued Resolution n. 213 of 12/15/2015 , which establishes the procedural rules for the custody hearing to be obeyed throughout the national territory.
Custody hearing in flagrante delicto, preventive and temporary: It may seem that custody hearing is only a mandatory substitute for arrest in flagrante delicto, given that the present provision only refers to arrest in flagrante delicto. However, considering that both the American Convention on Human Rights and the International Covenant on Civil and Political Rights order that every prisoner must be taken, without delay , to the presence of the judge, the custody hearing is also an obligatory act in cases of preventive detention. and temporary detention. It should be noted that treaties dealing with human rights are supralegal, that is, they are below the Federal Constitution and above ordinary laws (see subtitleTreaties that deal with human rights and that are supralegal in the title The problem of hierarchy and conventions on human rights , in comments to article 1.
Unconstitutional state of affairs and mandatory holding of custody hearings: There is sufficient evidence that the national penitentiary system is characterized as an “unconstitutional state of affairs”. Judges and courts must hold, within 90 days, custody hearings, as well as make it possible for the prisoner to appear before the judicial authority within a maximum period of 24 hours, counted from the moment of arrest ( ADPF 347 MC, rel. min. Marco Aurélio , judgment on 9-9-2015, judgment published in the DJE of 2-19-2016 – Newsletter 798, Plenary).
Custody hearing. Necessary and advantageous:Regarding the usefulness of the custody hearing, important observations by Minister Dias Toffoli: “For critics of the custody hearing as a control over prison overcrowding, I suggest a dose of pragmatism. Between 2009 and 2019, 300 thousand people entered our prisons, but only 182 thousand vacancies were created, a mismatch that should not be resolved in the near future given the fiscal crisis in the country. It is worth remembering that overcrowding and the poor conditions for serving sentences in Brazil were the trigger for the emergence of criminal factions, and that by sending people involved in non-violent crimes to meet these groups, we are providing cheap labor for organized crime. . Custody hearings, moreover, promote rationalization of public spending by avoiding illegal or unnecessary arrests, since the cost of maintaining a prisoner is, according to estimates, around R$3,000 per month, while the creation of each new vacancy would cost around R$50,000. This statement is reinforced by the evidence that at least 37% of pre-trial detainees end up released after a court decision, as already disclosed by Ipea – Instituto de Pesquisa Econômica Aplicada” (Five Years of Custody Hearing: Myths and Truths . Conjure).
Study by Doctor Camilin Marcie de Poli: Below, we make full use of an interesting and well-prepared critical study by Camilin Marcie de Poli, Doctor in Criminal Sciences from the Pontifical Catholic University of Rio Grande do Sul, lawyer, author of the work “Criminal Procedural Systems” and of several articles in the area . Camilin Marcie writes that “it is no secret that Brazil has a culture of incarceration. We are the third country in the world ranking with the highest number of people incarcerated (considering those convicted and provisional). We are behind only the United States (first place) and China (second place), which demonstrates that it is trapped too much in terrae brasilis (…) It is important to note that the referred institute is a procedural instrument of great relevance, which cannot be forgotten. It should serve as a prison control mechanism, as an instrument to protect individual rights and guarantees, and to combat the culture of incarceration, especially with regard to the trivialization of pre-trial detention. However, according to a report by the National Penitentiary Information Survey [13] (Infopen), recently released by the National Penitentiary Department (Depen), the total number of people incarcerated in Brazil in June 2016 was 726,712, of which 292,450 were provisional prisoners , that is, more than 40% of the prison population is made up of people who do not have a final conviction. The graphs also show that the prison population in the year 2000 was 232,755, of which 80,775 (35%) were provisional prisoners . As if that were not enough, the report reveals that the total number of vacancies in the prison system in 2016 was 368,048, and the deficit of 358,663 vacancies, that is, almost half of the prison population did not have a place to be imprisoned. Of the prison mass, 89% are found in units with a shortage of vacancies, while 78% of penal establishments are overcrowded. Just to get an idea of the disparity and absurdity, the Brazilian population in 2000 was 169,799,170 inhabitants [14], while the population in 2016 was 206,081,432 inhabitants [15], that is, there were a population increase of 21.37% in this period, while the prison population increased by 212.22% in the same period.(…) With regard to custody hearings, the National Council of Justice presented data regarding their holding throughout the national territory until June 2017. They show that 258,485 custody hearings were held throughout the national territory, from which 55.32% (142,988) resulted in pretrial detention, and 44.68% (115,497) resulted in release. In 4.90% (12,665) of them, there was an allegation of violence during the arrest, and in 10.70% (27,669), there was a social/assistance referral. As can be seen, more than half (55.32%) of the cases submitted to the custody hearing involved the conversion of prison in flagrante delicto into pre-trial detention, that is, there was maintenance of pre-trial detention instead of relaxation, pre-trial release or the application of a precautionary measure other than imprisonment.unpreparedness and unwillingness of the judges to conduct the custody hearing; lack of commitment to the purpose of the institute (protection of individual rights and guarantees); holding the custody hearing as a mere formality;lack of infrastructure and personnel, and, worst of all, the prevalence of the incarceration culture and inquisitorial mentality. As can be seen, for the custody hearing to gain effectiveness and fulfill the intended purpose, there must be (in addition to the constitutionality control) the control of conventionality (so that the national legal system also adapts to the guarantees provided for in the Convention Americana of Human Rights; respect for individual rights and guarantees; training of all those involved; investments in infrastructure and personnel; compliance with the rules of the game, among others. That is, a full and effective change in the criminal procedural system is needed. : if there is no real commitment to carrying out the custody hearing, especially with the change in the rationality of legal operators, of the legislators and the others involved, everything will remain as it has always been, that is, it will continue to reproduce and perpetuate itself over time (incarceration, incarceration, incarceration…). (…)” (The (in)effectiveness of the custody hearing in the face of the inquisitorial mentality – Justifying Restless Minds Think Right ) – was highlighted.
Illegality of arrest and decree of preventive detention: Even if arrest in flagrante delicto is illegal, or in the face of nullity, or in view of the fact that the record does not reflect a situation of criminal flagrance, preventive detention can be decreed. It should be noted: there would be no sense in a first moment for the judge to relax the illegal arrest to then decree the preventive one in the presence of its requirements. As we have emphasized, even if the report does not reflect a situation of flagrant crime (arrest carried out when the circumstances of article 302 are absent), it can, considering the evidence collected, lead to the full conviction that the crime occurred and that the authorship is proven, and that the need for arrest is present to guarantee public order or for the convenience of criminal instruction or to ensure the application of the criminal law (preventive requirements contained in article 312 ).
Doctrine
Antonio Sérgio Altieri de Moraes Pitombo: Creating the function of the guarantee judge is to improve the protection of the individual . Crumbs.
Aury Lopes Jr and Caio Paiva. Custody hearing points to civilizing evolution of criminal procedure . Conjure
Aury Lopes Jr. and Caio Paiva: Custody hearing and the immediate presentation of the prisoner to the judge: towards the civilizing evolution of the criminal process . repositorio.pucrs.br.
Aury Lopes Jr. and Alexandre Morais da Rosa: Appropriate appeal when the judge grants freedom in the custody hearing . Conjure
Guilherme Nucci: The Myths of the Custody Hearing . guilhermenucci.com.br.
Gustavo Badaró: Custody hearing in Rio de Janeiro has three worrying aspects . Conjure
Gustavo Badaró: Right to trial by an impartial judge: how to ensure objective impartiality in the judge in systems where there is no function of the guarantee judge . badaroadvogados.com.br.
Luiz Flavio Gomes: Custody hearing and the resistance of inquisitorial souls . Legal Content.
Mariana Michelotto: The electronic anklet as an alternative to the prison system. arnsdeoliveira.adv.br.
Renato Marcão: Presentation/custody hearing (CNJ Resolution 213/2015) . Legal Content.
Ricardo Lewandowski: Custody Hearings of the National Council of Justice — From policy to practice . Conjure
Valdinei Cordeiro Coimbra: Custody Hearing from the perspective of the Unconstitutional State of Things in the Brazilian Penitentiary System . Legal Content. The author presents an extensive and in-depth study on the policy of extrication in the face of the unconstitutional state of affairs in the Brazilian penitentiary system. Among other conclusions, it arrives at the following: “(…) there are many crimes in Brazil with a minimum sentence equal to one year and a maximum sentence of more than 4 years, which in theory would entail the suspension of the process of art. 89 of the CP, not justifying the impossibility of granting bail in the police sphere for these hypotheses, which would reach crimes such as embezzlement and other crimes without violence or serious threat to the person. Certainly, a new legislative change in the sense of expanding the chances of granting bail in the police sphere, as well as the possibility for the Delegate to apply provisional measures other than prison (article 319 CPP),
Vladimir Passos de Freitas: We need to take a step forward with custody hearings . Conjure
Jurisprudence
With the supervenience of decree of preventive detention, the allegations of illegality of segregation in flagrante delicto are impaired, in view of the formation of a new title giving rise to precautionary custody. Source: Jurisprudence in theses (STJ).
Judgments:
RHC 93880/GO, Rel. Justice Sebastião Reis Júnior, Sixth Panel, judged on 12/13/2018, DJE 02/04/2019
RHC 98538/EC, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 12/13/2018, DJE 02/04/2019
HC 476258/SC, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/11/2018, DJE 12/18/2018
HC 448480/SP, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 12/04/2018, DJE 12/14/2018
HC 469605/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 11/27/2018, DJE 12/10/2018
HC 447846/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 11/13/2018, DJE 11/22/2018
The custody hearing became an obligation with the advent of the American Convention on Human Rights: Article 7, item 5, of the American Convention on Human Rights legitimized the custody hearing in Brazil and stopped the effects of the ordinary legislation in conflict with it due to its supralegal status ( ADI 5.240, rel. Min. Luiz Fux, judgment on 8/20/2015, judgment published in the DJE of 2/1/2016 (Newsletter 795, Plenary).
Constitutionality of normative act that obliges custody hearing: The normative act enacted by a court of law that determines the presentation of a detained person, up to 24 hours after his arrest, to the competent judge, to participate in a custody hearing ( ADI 5.240 , Judge Luiz Fux, judgment on 20-8-2015, judgment published in the DJE of 1-2-2016 (Newsletter 795, Plenary).
After the conversion of arrest in flagrante delicto into preventive, the allegation of nullity that may exist in relation to the absence of a custody hearing is overcome. Source: Jurisprudence in theses (STJ).
Judgments:
RHC 103333/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/06/2018, DJE 12/12/2018
HC 474093/SP, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 12/04/2018, DJE 02/04/2019
RHC 98748/RS, Rel. Minister Laurita Vaz, Sixth Panel, judged on 12/04/2018, DJE 12/19/2018
HC 423564/SC, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 11/13/2018, DJE 11/28/2018
RHC 90346/MG, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 11/06/2018, DJE 11/14/2018
RHC 103097/MG, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 10/04/2018, DJE 10/15/2018
There is no nullity of the custody hearing for alleged violation of Binding Precedent n. 11 of the STF, when duly justified the need for the use of handcuffs by the segregated. Source: Jurisprudence in theses (STJ).
Judgments:
RHC 91748/SP, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 06/07/2018, DJE 06/20/2018
HC 433755/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/27/2018, DJE 03/08/2018
HC 387476/PR, Rel. Minister Jorge Mussi, Fifth Panel, judged on 06/27/2017, DJE 08/01/2017
Monocratic Decisions
HC 423182/SP, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 11/13/2018, published on 11/19/2018
RHC 087364/PR, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 05/02/2018, published on 05/04/2018
HC 420935/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/06/2018, published on 02/14/2018
Custody hearing via videoconference : It is not possible to hold a custody hearing via videoconference ( CC 168.522-PR , Reporting Min. Laurita Vaz, Third Section, unanimously, judged on 12/11/2019, DJe 17 /12/2019).
Exclusions of unlawfulness and guilt and remedies
Antilegality exclusions: If, examining the arrest warrant in flagrante delicto, the judge concludes that there are indications that the agent committed the act under the conditions set forth in items I to III of the caput of article 23 of Decree- Law no . December 1940 – Penal Code , may, on grounds, grant the accused provisional release, by means of a term of attendance at all procedural acts, under penalty of revocation. The following are excluded from illegality: I – in a state of necessity; II – in legitimate defense; III – in strict fulfillment of a legal duty or in the regular exercise of rights.
Exclusion of culpability: By analogy ( article 3 ), if there are indications that the agent has committed the act covered by exclusion of guilt, the judge must, in the same way as with the exclusion of unlawfulness, grant provisional release. Irresistible moral coercion excludes guilt (excludes the typical fact according to the finalist thesis), hierarchical obedience, excusable prohibition error (idem), unenforceability of different conduct and fortuitous complete drunkenness. The analogy is based on the well-known aphorism ubi eaden ratio , ibi eaden juris dispositio (where there is the same reason for deciding there must be the same provision of law). As an instrument of integration of the legal order, there are two presuppositions of the analogy: the lack of regulation for the unforeseen hypothesis and the similarity of the foreseen hypothesis with the unforeseen one. There is use of analogy when the law does not provide the solution for a given hypothesis, and it, the analogy, is authorized in the integration of procedural law rules.
No need to prove exclusions of crime or culpability: With regard specifically to the crime, the preventive measure is satisfied with evidence of materiality and authorship. That’s when there are no contraindications to contradict them. If there are contraindications, that is, evidence that excludes crime or culpability (counterindications of the existence of a crime), preventive action is inapplicable. Proof of these exclusions is not required. If for acquittal these exclusions do not need to be proven, with all the more reason demonstration is waived for provisional release.
Appeal against decisions relating to imprisonment: In the case of illegal enactment of preventive detention, the appropriate remedy is habeas corpus . In the case of granting provisional release, the manageable resource is the one in the strict sense ( article 581, V ).
Armed criminal organization or militia and restricted weapon. Failure to hold the hearing and accountability.
Denying freedom by force of law. Infeasibility: Pursuant to paragraph 2, if the judge verifies that the agent is a repeat offender or that he is part of an armed criminal organization or militia, or that he is carrying a firearm for restricted use, he must deny provisional release, with or without precautionary measures. The normative prohibition of freedom consists of a claim that is incompatible with the principle that only the Judiciary can order the arrest. On this subject, see the subtitle Provisional freedom is not prohibited by the Federal Constitution in the title Provisional freedom is viable in non-bailable crimes , in comments to article 323.
Failure to hold a custody hearing and responsibility: The authority that caused, without good reason, the failure to hold a custody hearing within the period established in the caput of this article will respond administratively, civilly and criminally for the omission (paragraph 3).
Doctrine
Salise Monteiro Sanchotene: Common aspects between the crime committed by Militias in Brazil and the Mafioso type in Italy .
Non-holding of hearing and preventive
Possibility of decreeing the preventive measure when a custody hearing is not held: According to paragraph 4, the failure to carry out a custody hearing within the legal period implies the illegality of the arrest, which does not prevent the decreeing of the preventive measure. The writing is not good. The device says and then unsays. He says that arrest is illegal, in order to go on to say that there may be arrest. It could have better wording, that is, the failure to hold the hearing within the legal period does not prevent its holding and preventive decree if the legal assumptions are present. That’s what the device means. The preventive can be enacted after the period for holding the custody hearing has elapsed. However, to be decreed, only if it is in custody hearing, even if late.
Jurisprudence
Need for custody hearing:Any person who is caught in flagrante delicto — whatever the motivation or nature of the criminal act, even if it is a heinous crime — must be taken, “without delay”, to the presence of the competent judicial authority, so that the latter, having heard the custodian “about the circumstances in which his arrest took place” and having examined the formal and material legality aspects of the arrest warrant in flagrante delicto, may: (i) relax the arrest, if the illegality of the flagrante delicto is verified, (ii) grant provisional release, if the situations referred to in art. 312 of the Code of Criminal Procedure (CPP) (1) or if any of the exclusions of illegality provided for in art. 23 of the Penal Code (CP) (2), or even (iii) convert the flagrante delicto into preventive detention, if the requirements of arts.HC 188888/MG, rel. Min. Celso de Mello, judgment on 6.10.2020 ).
