Art. 355. The precatoria will be returned to the deposing judge, regardless of the transfer, after the “fulfillment” has been launched and service of process has been made by order of the deprecated judge.
§ 1 Once verified that the defendant is in a territory subject to the jurisdiction of another judge, the judge deprecating the case will be sent to him to carry out the due diligence, provided that there is time to make the summons.
§ 2 o Certificate by the bailiff that the defendant hides so as not to be summoned, the precatoria will be immediately returned, for the purpose foreseen in article 362 .
itinerant character
Itinerant character of the precatoria: if the accused cannot be located in the court deprecated and there is information that he is in another district, the precatoria is sent there. It is the itinerant character of the precatory.
Time for summons: According to paragraph 1, the precatoria is sent to the judge of another jurisdiction as long as there is time to serve the summons . In the previous system, the date designated for the interrogation hearing was included in the precatoria, hence the reason for this expression alluding to the time to make the citation. As, currently, the summons is not made to attend a hearing, but to present a defense within ten days, strictly speaking, there is always time.
citation by public notice
Accused not located in the deprecated court: If the accused is not located in the jurisdiction of the deprecated court and there is no information regarding his whereabouts, the deprecated judge must return the summons letter to the deprecating judge, who is responsible for deciding on new steps with regarding the location of the defendant or whether summons will be determined by edict ( article 361). It is not up to the deprecated judge to determine the citation by public notice of the accused not located, since the one who has more information about the whereabouts of the accused is the judge who has the file of the case. In addition, there are important implications of summons by public notice, the main one being the suspension of the process, and it is the prosecuting judge who is authorized to assess the convenience of taking further steps or ordering service of process by public notice with the consequent suspension of the process.
Quote with exact time
Defendant who hides and summons at the right time: If the defendant hides, article 362 applies , that is, it must be quoted at the right time. The question that arises is whether it is the deprecated judge or the deprecating judge who should decide on the execution of this type of citation. The wording of paragraph 2, determining the return of the letter rogatory, implies that it should be sent to the deposing judge, for the purpose of deciding on the matter. There is an interpretation in the opposite direction, since the letter rogatory itself can serve as a writ and its return would be from the bailiff to the deprecated judge. In our view – considering that, from the probative point of view, it doesn’t matter if the deprecated judge or the deprecant is in charge of examining the pertinence and legality of the service of process based on the information contained in the bailiff’s certificate, which clarify the reasons why the accused is hiding –, the interpretation that best meets the principle of procedural celerity is the one in the sense that it is up to the judge to make the decision. Otherwise, the precatoria will return to the deprecating judge to decide and then return to the deprecated judge for the purpose of effecting the citation at the right time, which constitutes a manifest useless waste of time.
