Art. 360. If the defendant is arrested, he will be personally summoned. (Wording provided by Law No. 10,792, of 12.1.2003)
Citation of the arrested defendant
Outdated discussion: It was debated in doctrine and jurisprudence whether the accused’s request for the interrogation hearing made up for the lack of citation. Since the prisoner is no longer summoned to appear at a hearing (see subheading The judgment and the place, the day and time at which the defendant must appear in the heading Contents of the writ of summons , in annotations to article 352), but to present a defense writing, this discussion has lost its meaning.
Imprisoned in another county: The citation is made by means of a writ.
Defendant arrested and summons void by public notice
Nullity of summons by public notice of a defendant arrested: The wording of Precedent 351 of the STF is as follows : Summons by notice of a defendant arrested in the same unit of the Federation in which the judge exercises his jurisdiction are void (see jurisprudence subsequent to the publication of the Precedent ). Interpreted a contrario sensu, it is understood that there is no nullity when summoned by public notice if the accused is imprisoned in another unit of the Federation. This jurisprudential understanding contains considerable injustice, since the accused is under the custody of the State and, therefore, there is no way for the State itself to conclude that it is in an uncertain and unknown location to justify the citation by public notice. In view of the recently created National Bank of Arrest Warrants – BNMP by Resolution No. 137, of July 13, 2011, of the National Council of Justice, which in its article 5 provides that the court of origin will update the information on arrest warrants arrest registered with the BNMP within 24 (twenty-four) hours, counting from the revocation of the arrest or knowledge of compliance with the order, the decisions that consider valid the citation by public notice when the accused is imprisoned in another state are no longer justified. The fact is that the BNMP database requires not only the registration of arrest warrants issued but also those that have been served. Thus, if the accused is not located for the purposes of summons, it is a judicial duty to consult the National Bank of Arrest Warrants, with a view to verifying that the defendant is not under arrest.
