Art. 41 . The denouncement or complaint will contain the exposition of the criminal fact, with all its circumstances, the qualification of the accused or clarifications by which he can be identified, the classification of the crime and, when necessary, the list of witnesses.
Remissions
https://www.youtube.com/embed/kLdz_xMubUo?feature=oembedThis video is repeated in articles 41, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, as it deals with all of them. Subjects: elements of the complaint, power of attorney, indivisibility, waiver and pardon
https://www.youtube.com/embed/ymc1WeynaW0?feature=oembedElements of the complaint and topics discussed in the doctrine
Complaint: Below, everything that is said for the complaint applies, in principle, to the complaint.
Ineptitude and rejection of the complaint: See comments to Article 395 .
General topics relating to criminal action: See comments on articles 24 .
Doctrine
Aury Lopes Jr. and Alexandre Morais da Rosa: Discover the rhetorical pedaling of in dubio pro societate . Conjure
the complaint
Reference: See title A denunciation in comments to article 24.
Elements: Article 41 lists the elements of the complaint. They are: a) exposure of the criminal fact; b) the circumstances of the criminal act; c) the qualification of the accused or clarifications by which he can be identified; d) the classification of the crime (the penal provision violated); e) the list of witnesses, when necessary; f) the promoter’s signature.
The nullity of the process due to lack of complaint: According to the provisions of article 564, item III, letter a , the absence of complaint implies nullity of the process. The complaint is an essential act of the process. Attributing to the accused a certain fact, it allows him to promote his defense through the contradictory. When Article 564 sanctions the nullity of the process due to lack of complaint, it must be taken into account that it is not only the material absence of the initial accusation that entails nullity. The piece may be materially present and signed by the promoter, however, it may lack existence requirement. The lack of a requirement of existence is equivalent to the very non-existence of the complaint. The lack of exposition of the criminal fact in the accusatory piece is equivalent to its non-existence. It is clear that, even in this case, it is possible that the failure to state the fact is not a total and complete fault, but a significant deficiency in the statement of facts, so as not to make clear the criminal hypothesis that is imputed to the accused. It is not possible to establish a minimum descriptive limit of the criminal hypothesis in order to demarcate the field of effectiveness of the complaint. The assessment of nullity depends especially on the effects that the complaint has on the defense of the accused. If in a process, despite its descriptive shortcomings, the defense of the accused is present, not suffering any damage, there is no nullity. On the other hand, if the narrative deficiencies harm the accused’s right of defense and, consequently, the contradictory, then, in this case, nullity will be present. Thus, the conclusion reached is that the validity of the deficient complaint must be assessed in view, in particular, of the extent of the defense produced. if the narrative deficiencies cause damage to the accused’s right to defense and, consequently, to the contradictory, then, in this case, nullity will be present. Thus, the conclusion reached is that the validity of the deficient complaint must be assessed in view, in particular, of the extent of the defense produced. if the narrative deficiencies cause damage to the accused’s right to defense and, consequently, to the contradictory, then, in this case, nullity will be present. Thus, the conclusion reached is that the validity of the deficient complaint must be assessed in view, in particular, of the extent of the defense produced.
The supply of omissions in the denunciation: The omissions in the denunciation or complaint can be supplied at any time before the final judgment ( article 569 ). Absent formalities in the complaint, they can be supplied at any time before the sentence. The requirement of existence – the lack of exposure of the criminal fact – is not equivalent to a mere omission for the purposes of article 569 . The lack of exposure of the criminal fact implies nullity of the process. It cannot be suppressed. The complaint must be canceled in order for another to be offered.
Exposure of the criminal fact: This is the most important element of the complaint. It is he who enables the accused to exercise the right to full constitutional defense, providing the contradictory of the criminal instruction. The exercise of the right of defense by the accused is not viable without knowing exactly what fact is imputed to him. There is no denying what happened without a detailed accusatory narrative antecedent. The lack of exposure of the criminal fact is equivalent to the very non-existence of the complaint. As for the deficiency of exposure, to bring about nullity, it must be seen related to the defense produced. If the descriptive deficiency causes damage to the right of defense, there is nullity.
Circumstances of the criminal act: The complaint must contain the exposition of the criminal act with all its circumstances. Hélio Tornaghi cites the Latin verse: “Quis? quid? Ubi? Quibus auxiliis? Cur? Howmodo? When?” . The first, Quis, refers to whom. The second, Quid, “what a thing”, concerns the accidents of the event. The third and fourth relate, respectively, to the place and the participants. The fifth, Cur, “why,” concerns the reason for the crime. Quomodo, “in what way”. When, “when”, relative to the time of the crime (TORNAGHI, Hélio. Institutions of criminal procedure. 2nd ed. São Paulo: Saraiva, 1977).
Qualification of the accused: The complaint must contain the qualification of the accused or clarifications by which he can be identified (article 41). It does not necessarily need to contain the name, nationality, marital status and profession of the accused. The important thing is that through the complaint you can be identified. The complaint cannot be made against an undetermined person. In this way, perfectly valid, for example, the complaint that imputes a criminal fact to someone, domiciled at a certain address, with certain and described physical characteristics, the son of a certain person. It is sufficient that the elements contained in the complaint are sufficient to identify the person being accused. Name, marital status, etc. are secondary, as they can be clarified in the course of the procedural instruction. On this subject, see our comments on Article 259 .
The classification of the crime: The complaint must contain the classification of the crime, that is to say, the penal provision infringed by the accused. The lack of capitulation or the incorrect capitulation of the crime does not result in the nullity of the complaint, since the accused is defending himself against facts that are objectively imputed to him, and not against criminal provisions.
Crimes in general. Laws, doctrine and jurisprudence of interest: With regard to crimes of interest to the criminal court, see the heading Crimes in general. Laws, doctrine and jurisprudence interest , in comments to article 5.
List of witnesses: The complaint must contain, when necessary, the list of witnesses (Article 41). Witnesses are not always necessary to prove the alleged facts. There are crimes that can be demonstrated in other ways, such as documentary, expert and others.
The signature: The article does not mention it, but the obligation of the prosecutor’s signature on the complaint is implied. Does it matter in null? No. It constitutes a mere irregularity that can be remedied at any time. The fact is that the authenticity of the unsigned complaint is proven in different ways in the process, and the accused cannot claim ignorance.
Doctrine
Guilherme Nucci: The generic accusation and its effective limits . William Nucci
Raul Haidar: Exacerbated criminalization violates human rights . In times of witch hunts, when everything is a crime, everything requires punishment, the penalty presents itself as the remedy for all ills, nothing like reading this beautiful text by Raul Haidar. Conjure
Jurisprudence – General
Nullity of the complaint. Misappropriation: Judgment that, based on a complaint that does not describe the facts and does not specify the amount object of misappropriation, ends up condemning the defendant, without making explicit the amount embezzled, thereby causing manifest damage to the right of defense ensuring in the Federal Constitution (ACR 8904053048, TRF-4°, First Panel, DJU 5.8.92, p. 22.719).
Exposure of the criminal fact. Non-occurrence of nullity: The complaint is only inept when it causes damage to the defense of the accused, it does not matter if it omitted the place and date of the fact (RJTJRS 77/83). The complaint describing the facts, albeit succinctly, is valid (RT 617/341). The complaint is not inept, due to a wording defect, it attributes to the defendants the commission of criminal acts in order to make their full defense possible. There is no lack of just cause for the accusation when the facts narrated in the complaint constitute a crime in theory and are based on serious and reputable elements of the materiality of the crime and on strong and reasonable evidence of who the author is. (HC 9001077382, TRF-1°, Fourth Panel, Rapporteur Min. Nelson Gomes da silva. DJU 2.4.91, p. 6.132).
Exposure of the criminal fact. Presence of nullity: The complaint that merely reproduces the words with which the law identifies the criminal type is inept (RJTJRS 95/62 and STJ – RHC 16930 – DJU 27.04.92 – p. 5.507). A complaint that does not describe the fact with all its circumstances is void (RT 643/299). If the complaint generically describes the behavior of the accused, omitting his circumstances, not allowing, given this omission, a full defense, it is inept (RJTJRS 81/90, 83/115). In the case of misappropriation, a sentence based on a complaint is null and void if it does not specify the amount appropriated (TRF – 4th Region – DJU 05.08.92 – p. 22.719). The complaint must describe an individualized, perceptible fact that reflects conduct. It should not restrict itself to mentioning the words of the criminal type. This encloses abstract description. The imputation mentions concrete fact.
The violated device : The defendant defends himself against the fact, not against the capitulation (RJTJRS 75/46, 75/25, 77/20, 108/22). In criminal action, the accused defends himself against the imputation, regardless of the normative capitulation given by the Public Ministry. For the purpose of judging, whether the complaint is suitable or not, what matters is the described crime, not the classified crime (…) (EINACR 9002203039, TRF-2º, Full Court, Rapporteur Federal Judge Maria Tereza de ARC Lobo , DJU 16.3.93, p. 8167). Narrated in the complaint the practice of crime against social security, capitulating the crime as embezzlement provided for in article 171, it is not surprising for the accused to apply, in the sentence, of article 155, IV, a, of Law 3.807, of 1960, with the wording given by Decree-Law 66 of 1966. The defendant defends himself against the imputation of the fact contained in the complaint, and not from the classification of the offense made by the accusing body (CPP, mendatio libelli) (ACR 9201088647, TRF-1º, Third Panel, Rapporteur Judge Tourinho Neto, DJU 1.4.93, p. 10.963).
Ineptitude of the complaint that does not meet the requirements of article 41: The complaint that does not meet the requirements of article 41 of the Code of Criminal Procedure is inept because it does not describe the criminal facts in a clear and sufficient manner ( Judge Salise Monteiro Sanchotene – TRF4 – RCSE 5012344 -53.2018.4.04.7208 ).
Complaint that lists more witnesses than authorized : There is no nullity in the complaint that lists eleven witnesses, all heard in the instruction (RT 588/307).
Prosecutor who no longer exercised his functions : The complaint filed by a prosecutor who no longer exercised his functions in the Court is void (RJTJRS 84/28).
There is no need to speak of bis in idem when dealing with different criminal cases and different facts: The decision now questioned is in perfect harmony with the guidance of this Supreme Court in the sense that, taking care of different criminal cases and different facts ( even if practiced in the same context), there is no need to speak of bis in idem (HC nº 80.621/DF, Second Panel, Rapporteur Minister Néri da Silveira, DJ of 08/6/01). 2. Habeas corpus denied ( HC 103501, Rapporteur: Min. DIAS TOFFOLI, Judgment: 08/24/2010 ).
Complaint based on elements of information obtained in civil investigations: The Supreme Court’s jurisprudence is firm that the Public Prosecutor’s Office can file a complaint based on elements of information obtained in civil investigations, instituted for the investigation of civil and administrative offenses, in the course of of which there is a glimpse of the alleged practice of criminal offenses ( AP 396, Rapporteur: Min. CÁRMEN LÚCIA, Full Court, judged on 10/28/2010 ).
Anonymous report. Diligence to verify the facts: According to the precedents of the Federal Supreme Court, nothing prevents the triggering of criminal prosecution for the so-called “anonymous complaint”, provided that this is followed by steps taken to verify the facts reported therein ( HC 99490, Rapporteur: Min. JOAQUIM BARBOSA, Second Panel, judged on 11/23/2010 ).
Complaint based on elements of information obtained in civil investigations : The Supreme Court’s jurisprudence is firm that the Public Prosecutor’s Office can file a complaint based on elements of information obtained in civil investigations, instituted for the investigation of civil and administrative offenses, in the course of of which there is a glimpse of the alleged practice of criminal offenses ( AP 396, Rapporteur: Min. CÁRMEN LÚCIA, Full Court, judged on 10/28/2010 ).
Any decision by the Federal Court of Accounts on the accounts of the Administration does not constitute a condition for punishability of the crimes of Law 8.666/199: The relationship between the sphere of accounts and the judicial-criminal sphere is one of independence. These instances are independent or autonomous, and the opening of the investigation or the filing of the complaint is not conditioned to the conclusion of a possible process of judgments of accounts in any Court of Accounts in the Country, including the TCU ( HC 103725, Rapporteur: Min. AYRES BRITTO , Second Panel, judged on 12/14/2010 ).
Receipt of the complaint by an absolutely incompetent judge does not interrupt the prescription: The receipt of the complaint, when made by an absolutely incompetent judicial body, does not have the effect of interrupting the criminal prescription, since a null decision cannot generate the legal consequence referred to in the art. 117, I, of the Penal Code. Precedent. Doctrine ( HC 104907, Rapporteur: Justice CELSO DE MELLO, Second Panel, judged on 05/10/2011 ).
The crimes referred to in art. 1 of Dec.-Law 201/67 can only be committed by the mayor or by whoever acts in his place: The offenses referred to in art. 1 of Decree-Law 201/67 can only be committed by the mayor, due to the exercise of the office or by whoever, temporarily or permanently, takes his/her place. Thus, the mayor, or councillors, or any civil servant of the Municipality cannot be an active subject of any of those crimes, except as a co-participant – Special Criminal Laws and their Jurisprudential Interpretation, coordination Alberto Silva Franco and Rui Stocco , 7th ed. revised, updated and expanded, São Paulo: Ed. Revista dos Tribunais, 2002, p. 2690 ( RHC 107675, Rapporteur: Min. LUIZ FUX, First Panel, judged on 09/27/2011).
Sending financial resources abroad through “dollar-cabo”, and without the knowledge of the Central Bank, constitutes an indication of money laundering: Sending financial resources abroad, supposedly originated in the crime of passive corruption, through “dollar ” and without the knowledge of the Central Bank, as well as promoting intense circulation of the respective amounts and the return of a portion of the quantum to Brazil, constitutes an indication of materiality and authorship of crimes of money laundering, object of Law 9.613/98 ( Inq 2471 , Rapporteur: Min. RICARDO LEWANDOWSKI, Full Court, judged on 09/29/2011 ).
The complaint bears as a premise for its receipt the conjugation of articles 41 and 395 of the CPP, since it must contain the requirements of article 41 of the CPP and does not affect any of the hypotheses of art. 395 of the same legal diploma (Inq 2482, Rapporteur: Min. AYRES BRITTO, Rapporteur for Judgment: Min. LUIZ FUX, Full Court, judged on 09/15/2011).
Drunk driving. Typicality and proof. Theme/Repetitive 447: The criminal type of art. 306 of the Brazilian Traffic Code is formed, among others, by an objective element, of an exact nature, which does not allow the application of subjective interpretation criteria, that is, the index of 6 decigrams of alcohol per liter of blood. The degree of drunkenness is elementary and objective of the type, not constituting the typical conduct the exercise of the activity in any other concentration lower than that determined by law, emanated from the National Congress. The regulatory decree, being able to list any means of proof that it considered suitable for the typicality of the conduct, dealt specifically with 2 (two) exams by technical and scientific methods that could be carried out in devices approved by CONTRAN, namely, the blood test and the breathalyzer (Resp 1111566 – Rapporteur Marco Aurélio Bellizze – STJ – 2012 ).
Criminal liability of legal entities for environmental crimes: Art. 225, § 3, of the Federal Constitution does not condition the criminal liability of the legal entity for environmental crimes to the simultaneous criminal prosecution of the individual responsible in theory within the scope of the company. The constitutional norm does not impose the necessary double imputation ( RE 548181, Rapporteur: Min. ROSA WEBER, First Panel, judged on 06/08/2013 ).
Decision of the Federal Court of Accounts does not constitute a condition for prosecuting crimes of fraud to bids: Decision of the Federal Court of Accounts does not constitute a condition for prosecuting crimes of fraud to bids and fraud. By the principle of the independence of the instances, it is possible that the existence of the allegedly criminal fact and the identification of the respective authorship are defined in the criminal sphere without connection with the control instance exercised by the Courts of Auditors. Question of order resolved in the sense of not conditioning the prosecution of the crimes imputed to the Defendants to the future decision of the Federal Court of Accounts ( AP 565, Rapporteur: Min. CÁRMEN LÚCIA, Full Court, judged on 08/08/2013 ).
The complaint may be offered based on elements of information obtained in civil investigations: The Supreme Court’s jurisprudence is firm in the sense that the Public Prosecutor’s Office may offer a complaint based on elements of information obtained in civil investigations, instituted for the investigation of illicit acts. civil and administrative, in the course of which there is a glimpse of the alleged practice of criminal offenses ( AP 565, Rapporteur: Min. CÁRMEN LÚCIA, Full Court, judged on 08/08/2013 ).
The approval of accounts by the Court of Auditors does not preclude criminal prosecution: The fact that the Court of Auditors approves accounts submitted to it does not preclude criminal prosecution promoted by the Public Ministry and the criminal liability of agents involved in crimes of embezzlement of public money. Admitting the opposite would mean subtracting the judgment of crimes from the jurisdiction of the Judiciary, leaving this assignment to bodies that only have political-administrative competence ( AP 565, Rapporteur: Min. CÁRMEN LÚCIA, Full Court, judged on 08/ 08/2013 ).
Inept complaint due to lack of adequate description of commissive conduct by omission: It is inept complaint that imputes the practice of homicide in the improper omissive form when there is no clear and precise description of how the accused – medical surgeon on call – could have prevented the result of death, the simple mention of the defendant’s non-attendance at the hospital unit being insufficient, when she was requested to be present to provide immediate care to the patient who died ( RHC 39.627-RJ, Reporting Minister Rogerio Schietti Cruz, judged on 4/8/ 2014 – Bulletin No. 538 ).
Non-occurrence of crime of refusal, delay or omission of technical data (Law nº 7.347/85, art. 10). Lack of intent and individualized order: The accusation concerns the alleged qualified disobedience practiced by the accused, then mayor of the Municipality of Nova Iguaçu/RJ, who, deliberately, would have failed to comply with Parquet’s determinations to provide relevant information intended to instruct civil procedures filed before the 2nd Public Prosecutor’s Office of Collective Guardianship of the Nucleus of Nova Iguaçu. It is fundamental in the case, the a priori demonstration that the agent has acted with intent, since it is not punishable, in the case, the guilty figure. The order that is not complied with must be “individualized” and “transmitted directly to the recipient, either in writing or verbally”, under penalty of atypical behavior ( AP 679, Rapporteur: Min. DIAS TOFFOLI, Full Court, judged on 02/06/2014 ) .
Ineptitude of the complaint that does not clearly and precisely describe the conduct of the agent: It is inept complaint that, when describing the conduct of the accused as being intentional, it does so in a generic way, to the point of being possible to frame it both as conscious guilt and as eventual fraud ( RHC 39.627-RJ, Judge Rogerio Schietti Cruz, judged on 4/8/2014 – Newsletter No. 538 ).
Ineptitude of a complaint that alleges the commission of a culpable crime without a description of the conduct: A complaint that imputes the commission of culpable homicide while driving a motor vehicle (art. 302 of Law 9,503/1997) is inept without describing, clearly and precisely, the negligent, inept or reckless conduct that would have resulted in death, the mere mention that the alleged perpetrator was driving the vehicle at the time of the accident being insufficient (STJ, HC 305.194-PB, Reporting Judge Rogerio Schietti Cruz, judged on 11/11/2014, DJe 12/1/2014 – Newsletter 553 ).
No need for double attribution in environmental crimes: It is possible for legal entities to be held liable for environmental crimes regardless of the concomitant liability of the natural person who acted on their behalf ( STJ – RMS 39.173-BA, Reporting Min. Reynaldo Soares da Fonseca, judged in 8/6/2015, DJe 8/13/2015 – Newsletter 566 ).
Subpoena from the Public Prosecutor’s Office for the addition of the witness list and nullity: The subpoena from the Public Prosecutor’s Office so that it indicates the evidence it intends to produce in court and the inclusion of the list of witnesses by the prosecution, after the presentation of the complaint, but before the formation of the procedural relationship, are not causes, by themselves, of absolute nullity ( RHC 37.587-SC, Judge Reynaldo Soares da Fonseca, judged on 2/16/2016, DJe 2/23/2016 – Newsletter n. 577 ).
Denunciation after the deadline and list of witnesses: Failure to comply with the deadline for offering the complaint does not affect the right to present the list of witnesses ( HC 131.158, rel. min. Edson Fachin, judgment on 4/26/2016, DJE of 9-14-2016 – Bulletin 823, First Panel).
Regularity of the complaint filed by a prosecutor not acting in the court: The fact that the complaint is filed by a member of the Public Ministry acting in a common criminal court and received by the jury court does not offend the principle of the natural prosecutor ( HC 114.093, rel. p. / o ac. min. Alexandre de Moraes, DJE of 21-2-2018 ).
The complaint must clearly and precisely describe the criminally relevant facts and their respective circumstances: The current constitutional order imposes on the dominus litis that the accusatory piece, under the terms of art. 41 of the Criminal Procedure Code (CPP), indicate, in a clear and precise manner, the criminally relevant facts and their respective circumstances, which may be attributed to the accused ( AP 975, rel. min. Edson Fachin, DJE of 2-3- 2018 ).
Jurisprudence – Corruption
Ineptitude of denunciation for active corruption and continuation of the criminal prosecution for investigation of passive corruption: The recognition of the ineptitude of the denunciation in relation to the accused of active corruption (art. 333 of the CP) does not, by itself, induce the locking of the criminal action in in relation to the defendant, in the same process, for passive corruption (article 317 of the CP) ( RHC 52.465-PE, Justice Judge Jorge Mussi, judged on 10/23/2014 – Newsletter nº 551 ).
Complaint requirements for the offense of electoral corruption: The complaint relating to the offense of electoral corruption must describe a) who practices the typical verb – “give, offer or promise”; b) the means employed – “money, gift or any other advantage”; and c) linking the conduct to the special purpose of obtaining the vote of a specific person or, if undetermined, the specification of this circumstance, under penalty of being rejected for ineptness ( Inq 3.752/DF, rel. min. Gilmar Mendes, judged on 26- 8-2014, decision published in the DJE of 22-10-2014 – Bulletin 756, Second Panel).
The typification of corruption does not require the description of a specific ex officio act: For the ability to impute passive corruption, it is not necessary to describe a specific ex officio act, just a causal link between the undue advantages and the attributions of the public official, passing the latter to act no longer in favor of the public interest, but in favor of his personal interests ( Inq 4.506 and Inq 4.506 AgR-Segunda, rel. p/ o ac. min. Roberto Barroso – 03/15/2019) .
Jurisprudence – Drugs
Drugs. Retroactivity. Infeasibility of combination of laws. Repetitive theme 191: The retroactive application of Law n. 11,343/2006, provided that the result of the application of its provisions, in full, is more favorable to the defendant than that arising from the use of Law 6,368/76, the combination of laws being prohibited ( REsp 1117068/PR Laurita Vaz 08/06 /2012 ).
Subjecting an adolescent to more severe treatment than that given to an adult is prohibited. Drugs for personal consumption: It is forbidden to submit an adolescent to more severe treatment than that given to an adult, so that it is not possible to hospitalize or partially restrict the freedom of adolescents for committing an offense similar to the offense in art. 28 of the Drug Law ( HC 119.160/SP, rel. Roberto Barroso, judged on 4/9/2014, judgment published in the DJE of 5/16/2014 – Newsletter 742, First Panel).
The rite provided for in article 400 of the CPP does not apply to crimes contained in the Drug Law: As a result of the application of the principle of specialty, the rite provided for in art. 400 of the Code of Criminal Procedure (CPP) – as amended by Law 11.719/2008 – does not apply to the offenses contained in Law 11.343/2006 ( HC 121.953/MG, rel. min. Ricardo Lewandowski, judged on 10-6- 2014, judgment published in the DJE of 7/1/2014 – Bulletin 750, Second Panel).
Note: This understanding has changed.
Crimes of trafficking and association for drug trafficking. Possession of a small amount of drugs. Unsatisfactory investigative steps. There is no conviction: Conviction for the commission of crimes of drug trafficking and association for drug trafficking (Law 11.343/2006, articles 33 and 35), due to the possession of a small amount of drugs, in addition to the absence of other investigative steps, it represents a clearly inappropriate measure, capable of giving rise to acquittal ( HC 123.221/SP, rel. Min. Gilmar Mendes, judged on 10/28/2014, judgment published in the DJE of 2/10/2015 – Newsletter 765, Second Panel).
Trafficking in narcotics and provisional release. Overcoming Article 44 of the Drug Law: The denial of provisional release, in cases of arrest in flagrante delicto for the offense of drug trafficking, based solely on art. 44 of Law 11.343/2006 (Drug Law), constitutes a flagrant situation of illegal embarrassment, remediable through habeas corpus ( HC 119.934, rel. min. Dias Toffoli, judgment on 2-3-2015, judgment published in the DJE of 7 -4-2015 – Bulletin 773, First Panel).
Drug trafficking in its privileged form is not a heinous crime: Recent understanding of the Federal Supreme Court, in the judgment of HC 118.533-MS. Revision of the theme analyzed by the Third Section under the rite of repetitive resources. Theme 600. Illicit drug trafficking in its privileged form (art. 33, § 4, of Law n. 11.343/2006) is not a crime equivalent to heinous and, therefore, Statement 512 of the Precedent of the Superior Court must be canceled of Justice ( STJ, Pet 11.796-DF, Reporting Minister Maria Thereza de Assis Moura, Third Section, unanimously, judged on 11/23/2016, DJe 11/29/2016 – Newsletter 595) .
Agent in the condition of “mule” is a privileged dealer: Cause of reduction of art. 33, § 4, of Law no. 11,343/2006. Agent as a “mule”. Absence of proof that it is part of a criminal organization. It is possible to recognize the privileged trafficking of the agent transporting drugs, as a “mule”, since the simple action in this condition does not automatically lead to the conclusion that he is a member of a criminal organization ( STJ, HC 387.077- SP , Judge Ribeiro Dantas, unanimously, judged on 4/6/2017, DJe 4/17/2017 – Newsletter 602 ).
Jurisprudence – Complaint
Rejection of a criminal complaint related to the alleged commission of a crime against honor. The criminal complaint that imputes to the defendant the commission of a crime against honor must be rejected in the event that the plaintiff is limited to transcribing a few sentences, written by the defendant in his social network, according to which the plaintiff would be a habitual litigant of the Power Judiciary (notorious fact, published in numerous press organs), without clarifications that allow an analysis of the subjective element of the defendant’s conduct consistent with the positive and deliberate attempt to harm the honor of the offended party. AP 724-DF, Rel. Min. Og Fernandes, judged on 8/20/2014 – Newsletter 547).
Criminal complaint unaccompanied by evidentiary elements: The criminal complaint that, filed before any previous procedure, imputes the commission of an infraction of lesser offensive potential based only on the author’s version and on the indication of the list of witnesses, unaccompanied by Detailed Term or any other document capable of demonstrating, albeit in an evidentiary way, the authorship and materiality of the crime ( STJ, RHC 61.822-DF, Reporting Min. Felix Fischer, judged on 12/17/2015, DJe 25/ 2/2016 – Newsletter n. 577 ).
Rejection of a criminal complaint due to lack of just cause and fees : It is possible to order the plaintiff to pay attorney fees in the event of rejection of a criminal complaint due to lack of just cause ( EREsp 1.218.726-RJ, Reporting Min. Felix Fischer, judged on 6/22/2016, DJe 7/1/2016 – Newsletter No. 586 ).
The non-filing of a criminal complaint against all the alleged authors or participants in a criminal practice implies the tacit waiver : , rel. min. Roberto Barroso, judgment on 2-2-2016, DJE of 4-26-2016 – Bulletin 813, First Panel).
Absence of active legitimacy of the indigenous councils in criminal matters: The indigenous councils do not have active legitimacy in criminal matters. Consequently, the criminal complaint that seeks to impute the commission of crimes of racism and incitement to violence and hatred against indigenous peoples to parliamentarians must be rejected ( Inq 3.862 ED/DF, rel. min. Roberto Barroso, judged on 18- 11-2014, judgment published in the DJE of 12-12-2014 – Newsletter 768, First Panel).
Jurisprudence – Bidding
The choice of bidding modality different from that required by law, with the fractionation of expenses, constitutes fraud to the competitive nature inherent to the bidding ( AP 565, Rapporteur: Min. CÁRMEN LÚCIA, Full Court, judged on 08/08/2013 ).
Exemption from bidding and unenforceability of other conduct: The legal opinion of the specialized technical body, favorable to the unenforceability, prevents the criminal classification of the conduct provided for in art. 89 of Law 8.666/19931 ( Inq 3.674 rel. min. Luiz Fux 1st DJE Panel of 9/15/2017 – STF Newsletter 856 ).
The distinction between illicit and criminal claims that the complaint narrates the final action of the agent : The distinction between administrative offense (act of misconduct) and criminal offense (criminal act) claims that the accusatory exordial narrates the final action of the agent, aimed at obtaining undue advantage by waiving the bidding process, thereby violating the criminal legal right protected by the incriminating type ( Inq 3674 rel. min. Luiz Fux 1st Panel DJE of 9-15-2017 STF Newsletter 856 ).
Unenforceability of bidding with multiple agents. Need for the complaint to describe the subjective link between the participants: The imputation of the crime defined in art. 89 of Law 8.666/1993 to a plurality of agents demands the evidential description, in the accusatory piece, of the subjective link between the participants, to obtain the criminal result ( Inq 3.674 rel. min. Luiz Fux 1ª Turma DJE de 15-9- 2017 STF Newsletter 856 ).
Unenforceability of bidding and no indication of intent in the complaint. Rejection of the opening piece: Absence of the subjective element of the type (intent), in the crime of art. 89 of Law 8.666/1993, leads to the rejection of the complaint ( Inq 3.674 rel. min. Luiz Fux 1st Panel DJE of 15-9-2017 Informativo STF 856 ).
Jurisprudence – Principle of insignificance
Requirements for the application of the principle of insignificance. Recidivism: It is a reiterated understanding of this Court that the application of the principle of insignificance requires the satisfaction of the following vectors: (a) minimal offensiveness of the agent’s conduct; (b) absence of social danger of the action; (c) very low degree of disapproval of the behavior; and (d) inexpressiveness of the legal injury caused. Recognizing the recidivism and habituality of the criminal practice, the disapproval of the agent’s behavior is significantly aggravated, being enough to prevent the incidence of the principle of insignificance ( HC 100240, Rapporteur: Min. JOAQUIM BARBOSA, Second Panel, judged on 12/07/ 2010).
Principle of insignificance and theory of non-cumulative reiteration of conducts of different genders: According to the theory of non-cumulative reiteration of conducts of different genders, the contumacy of criminal offenses whose legal interest is not the property cannot be valued as an impeding factor to the application of the principle of insignificance in crimes of this nature ( HC 114.723/MG, rel. Min. Teori Zavascki, judged on 8/26/2014, judgment published in the DJE of 11/12/2014 – Bulletin 756, Second Panel).
I go astray. Amount less than R$ 20,000.00 not collected as a tax. Application of the principle of insignificance : The principle of insignificance applies to those accused of the crime of embezzlement (CP, art. 334), if the amount corresponding to the non-payment of taxes is less than R$ 20,000.00 ( HC 120,620/RS and HC 121.322/PR, rel. Min. Ricardo Lewandowski, judged on 2/18/2014, judgments published in the DJE of 6/16/2014 – Newsletter 739, Second Panel).
Atypicality for insignificance. Fishing in a prohibited place: Environmental crime. Principle of insignificance. Absence of effective damage to the environment. Material atypicality of the conduct. The crime provided for in art. 34 of Law no. 9.605/1998 in the event that the only fish – still alive – is returned to the river in which it was caught ( REsp 1.409.051-SC, Rel. Min. Nefi Cordeiro, unanimously, judged on 4/20/2017, DJe 28 /4/2017 – Newsletter 602 ).
Atypicality of carrying a tear gas grenade and a pepper gas grenade: Statute of disarmament. Carrying an explosive device. The conduct of carrying a tear gas grenade and another pepper gas grenade is not subject to the offense provided for in art. 16, sole paragraph, III, of Law no. 10.826/03 ( REsp 1.627.028-SP, Reporting Minister Maria Thereza de Assis Moura, unanimously, judged on 2/21/2017, DJe 3/3/2017 – Newsletter 599 ).
The principle of insignificance does not depend only on the result of the conduct: The application of the principle of insignificance, in crimes against property, does not depend only on the magnitude of the result of the conduct ( HC 136.385, rel. p/ o ac. min. Alexandre de Moraes , DJE of 2-10-2018 ).
Factors that determine the insignificance of the conduct: The measurement of the insignificance of the conduct as a negative requirement of typicality, in crimes against property, involves a broad judgment, which goes beyond the simple measurement of the material result of the conduct, also covering the recurrence or contumacy of the conduct agent, elements that, although not decisive, must be considered89 ( HC 135.164, rel. for the judgment min. Alexandre de Moraes, DJe of 8-6-2019 ).
Topics discussed in the doctrine
Receipt of the complaint and subsequent recognition of its nullity by the judge: According to strong doctrinal current, once the complaint is received, the magistrate is prevented from recognizing its nullity at a later time. It seems that this thesis is above all common sense. The judge, without realizing it, receives a null complaint. Ahead, he confirms the nullity. According to that current, he will have to carry out the process until its end, even convinced of the absolute nullity of the complaint. Does not make sense. In the end, what will you do? Condemn? Evidently not, he is convinced of the nullity. Will it absolve? Nullity is not a reason for acquittal, but for annulment. Will it cancel? Yes of course. There’s no sense in preventing you from annulling earlier.
Recognition of the nullity of the complaint after the sentence: There are not few decisions in the sense that, once the sentence has been handed down, any nullity of the complaint is remedied. If there is any defect, it will be from the sentence based on an invalid complaint. This position does not seem right to us, or rather, it is quite wrong. The nullity of the complaint may be declared after the sentence has been handed down. It is the complaint that is void. The sentence, once the nullity of the complaint is recognized, becomes null as well, since the effects of the nullity of the complaint extend to the entire process, including the sentence. In view of the nullity of the complaint, even if there is a sentence, what must be attacked, in the appeal or even after the final decision, remains the complaint, not the sentence. The nullity of the sentence, in the case, The nullity of an act, once declared, will cause the nullity of the acts that directly depend on it or are a consequence). Examining more concretely: the complaint does not expose the criminal fact. As a result, the defendant’s defense is undermined. Consequence is the conviction based on the testimony of the prosecution’s witnesses, which are not contradicted by defense witnesses, since the accused, not knowing precisely what he was being accused of, did not produce testimonial evidence. The sentence, based on the evidence produced in the instruction, remains well founded. Is this sentence, taken in isolation, defective? Certainly not. In the instruction there was damage to the defense of the accused as a result of null complaint. The cause of the damage was the complaint, not the sentence. The nullity is, therefore, in the complaint. The ineffectiveness of the sentence is derived. The apparent perfection and exceptional reasoning of a sentence can sometimes be caused by an incurable vice.
Corporate crime or collective authorship and description of the facts: In crimes committed by company administrators or those committed collectively (by a group of people), it is not always possible to describe the participation of each one. The validity of the complaint is debated in these cases. The solutions are diverse and contradictory. We believe that it is possible to establish two simple rules to resolve this issue. First rule : if, based on the evidentiary elements contained in the inquiry or pieces of information, it is possible to describe in the complaint the participation of each defendant (or some) in the criminal event, the prosecutor must do so in the complaint. Failure to do so, the complaint is void for lack of exposure of the criminal fact. second rule: if the evidence from the inquiry is insufficient to particularize the activity of the participants, the complaint, in relation to them, should, at the very least, clarify the responsibility of each one, that is, what is the link of each accused with the criminal activity. Without tying the accused to the crime, through evidence capable of providing just cause for criminal action, the complaint is not appropriate. The simple fact that someone is a partner in a company involved in a crime or is in the middle of a criminal crowd does not justify inclusion as a defendant in criminal proceedings. In summary, the complaint must demonstrate that there are indications of the defendant’s participation in the criminal event.
Alternative complaint: There is an alternative complaint when, for example, the agent is found with something stolen. Without knowing whether the offense is reception or theft, the complaint is offered for one crime or another. This complaint must be rejected. Just cause is lacking. If the prosecutor does not know which crime was committed, there is a lack of sufficient evidence to file a criminal action. In a second hypothesis, the complaint is void. It causes damage to the defense, which is burdened insofar as it is forced to present more than one defense for the same fact. Multiple arrows cannot be removed from the bamboo and thrown in the direction of the accused . If the accused deviates from one, he ends up being, in an oversight, hit by another. The process turns into a dance with the harmonica played by the Gaucho da Fronteira: Ala pucha, tchê, don’t be scared / That in danger the bullet comes, let’s get down / Ala pucha, tchê, don’t get scared / That in danger the bullet comes, let’s get down .
Doctrine
Gustavo Badaró: On the Inadmissibility of Alternative Imputation in Brazilian Criminal Procedure . badaro lawyers
Jurisprudence
Nullity of the complaint recognized after the sentence : If there is a conviction motivated by a complaint, the eventual ineptitude of the accusatory piece can no longer be alleged. In such a situation, it is necessary to question, if applicable, the conviction itself, and no longer the complaint that motivated it (STF – Full Court – DJU 28.08.92, p. 13454). In the same direction: RT 615/300 and RT 647/351.
Possibility of reconsidering the decision to receive the complaint after the defendant’s prior defense: The fact that the complaint has already been received does not prevent the lower court from, shortly after offering the defendant’s response, provided for in arts. 396 and 396-A of the CPP, reconsider the previous decision and reject the accusatory document, upon verifying the presence of one of the hypotheses listed in the items of art. 395 of the CPP, raised by the defense (Resp 1.318.180-DF, Reporting Justice Sebastião Reis Júnior, judged on 5/16/2013 – Newsletter nº 0522).
Possibility of reconsidering the decision to receive the complaint after the defendant’s prior defense: The fact that the complaint has already been received does not prevent the lower court from, shortly after offering the defendant’s response, provided for in arts. 396 and 396-A of the CPP, reconsider the previous decision and reject the accusatory document, upon verifying the presence of one of the hypotheses listed in the items of art. 395 of the CPP, raised by the defense (Resp 1.318.180-DF, Reporting Justice Sebastião Reis Júnior, judged on 5/16/2013 – Newsletter nº 0522).
Jurisprudence – corporate crime
Complaint on co-authorship and corporate crime. Nullity : Must describe the behavior of each accused, albeit briefly (RJTJRS 89/28).
Complaint on co-authorship and corporate crime. Absence of nullity : The complaint, covering all directors of the legal entity, does not matter as an option for objective criminal liability, as it has the content of a proposal which will result in individual responsibility for the crime (RHC 65491 – STF). It is unnecessary to individualize the conduct of each co-accused in case of joint or collective authorship (RT 615/345, 617/293, 652/282).
Need to demonstrate the link between the accused and the criminal enterprise in the complaints of corporate crimes: In corporate crimes, although a detailed and individualized description of the conduct of each accused in the complaint is not required, it is essential that there is a minimum demonstration of the contribution of each accused for the crime imputed to them ( HC 218.594-MG, Reporting Justice Sebastião Reis Júnior, judged on 12/11/2012 – Newsletter nº 0514 ).
Ineptitude of the complaint that does not individualize the conduct of a partner and manager of a legal entity: It is inept the complaint that, by imputing to the partner the commission of crimes against the tax order provided for in items I and II of art. 1 of Law 8.137/1990, is limited to transcribing excerpts from the criminal types in question and mentioning the condition of the accused as a manager of the business company that, in theory, would have suppressed taxes, without describing what illegal conduct allegedly committed by the accused would have contributed to achieve the harmful result ( HC 224.728-PE, Judge Judge Rogerio Schietti Cruz, judged on 6/10/2014 – Newsletter No. 543 ).
The mere fact of being mayor does not imply criminal responsibility for an agreement relating to works: The simple fact that the mayor is responsible for signing an agreement, as well as the fact that he is hierarchically superior to the department responsible for the work, are insufficient to support the imputation of the alleged practice of crime described in art. 1, II, of Decree-Law 201/1967 ( Inq 3.719/DF, rel. Dias Toffoli, judged on 8/12/2014, decision published in the DJE of 10/30/2014 – Newsletter 754, First Panel).
Mere hierarchical subordination does not mean automatic criminal liability: Mere hierarchical subordination does not mean automatic criminal liability ( AP 913 QO, rel. min. Dias Toffoli, judgment on 17-11-2015, judgment published in the DJE on 15-12-2015 – Bulletin 808, Second Panel ).
Submitting the accused to prosecution exclusively for the hierarchical position violates the rules regarding authorship: Allowing the accused to be submitted to prosecution exclusively for the superior hierarchical position he occupied violates the rules regarding authorship and participation that govern Brazilian criminal law ( AP 905 QO , rel. min. Roberto Barroso, judgment on 2-23-2016, DJE of 3-22-2016 – Bulletin 815, First Panel).
The invocation of the theory of the domain of the fact cannot be invoked to solve the weakness of the proof: The invocation of the theory of the domain of the fact with a view to solving problems of evidential weakness or in order to cool down the rigors for the characterization of the fraud is not allowed ( AP 975, rel. min. Edson Fachin, DJE of 2-3-2018 ).
Infeasibility of imputation based exclusively on the hierarchical position of the agent in the government : Imputation centered solely on the position of a given agent in the hierarchical governmental scale must be refuted ( AP 975, rel. min. Edson Fachin, DJE of 2-3-2018 ) .
Jurisprudence – Taxes and contributions
No need for a definitive constitution of the tax credit for the consummation of the crime provided for in article 293, § 1, III, “b”, of the CP: The definitive constitution of the tax credit is unnecessary for the consummation of the crime provided for in art. 293, § 1, III, “b”, of the CP ( REsp 1.332.401-ES, Reporting Justice Maria Thereza de Assis Moura, judged on 8/19/2014 – Newsletter nº 546 ).
There is no illegality in the criminal prosecution of those who, regularly summoned in the tax administrative process to decline the origin of amounts credited to their checking account, fail to do so: The criminal prosecution and subsequent conviction for the crime under analysis is not illegal , in criminal continuity (CP, art. 71), of those who, regularly summoned within the scope of tax administrative proceedings to decline the origin of amounts credited to their current account, fail to do so under the allegation that they would be unable to pay the requested clarifications (HC 121.125/PR, rel. Min. Gilmar Mendes, judged on 6/10/2014, judgment published in the DJE of 9/5/2014 – Newsletter 750, Second Panel).
Initial term of the statute of limitations for the crime provided for in art. 2, I, of Law 8.137/1990. The initial term of the statute of limitations for the punitive claim of the crime provided for in art. 2, I, of Law 8.137/1990 (“make a false statement or omit a statement about income, goods or facts, or employ another fraud, to exempt yourself, in whole or in part, from paying the tax”) is the date on which the fraud is perpetrated, not the date on which it is discovered ( STJ, RHC 36.024-ES, Justice Rel. Reynaldo Soares da Fonseca, judged on 8/25/2015, DJe 9/1/2015 – Newsletter 568 ).
Effects of the suspension of the tax credit requirement on the prescription of the punitive claim: The statute of limitations of the punitive claim of the crime of social security embezzlement (art. 168-A of the CP) remains suspended while the tax credit requirement is suspended due to an anticipation decision of the effects of guardianship in civil court ( STJ, RHC 51.596-SP, Judge Felix Fischer, judged on 2/3/2015, DJe 2/24/2015 – Newsletter 556 ).
The counting of the period for the prescription of crime against the tax order starts with the definitive constitution of the tax credit, even in the case of facts that occurred before the Precedent 24 of the STF: There is no need to speak of retroactive application in malam partem of the Enunciation 24 of the Binding Precedent to the facts that occurred prior to its publication. The argument according to which the counting of the period for the prescription of the punitive claim would start soon after the commission of the crime, regardless of the definitive constitution of the tax credit, does not succeed. Even before the edition of the aforementioned binding precedent, the jurisprudence was already consolidated ( RHC 122.774, rel. min. Dias Toffoli, judgment on 5/19/2015, judgment published in the DJE of 6/11/2015 – Newsletter 786, First Panel ).
Fraud against social security and devolution of undue advantage before receipt of the complaint: It does not extinguish the punishability of the crime of social security fraud (art. 171, paragraph 3, of the CP) the return to Social Security, before receipt of the complaint, of the advantage illicitly perceived, and the initiative may eventually characterize later regret, provided for in art. 16 of the CP ( REsp 1.380.672-SC, Reporting Judge Rogerio Schietti Cruz, judged on 3/24/2015, DJe 4/6/2015 – Newsletter 559 ).
Embezzlement and extinction of punishment: The payment of the due tribute does not extinguish the punishment of the crime of embezzlement (art. 334 of the CP) ( STJ, RHC 43.558-SP, Judge Jorge Mussi, judged on 2/5/2015, DJe 2/13/2015 – Newsletter 555 ).
Tax statute of limitations in tax enforcement and its impact on criminal proceedings : The recognition of tax statute of limitations in tax enforcement is not capable of justifying the suspension of criminal proceedings relating to crimes against the tax order provided for in items II and IV of art. 1 of Law no. 8,137/1990 ( STJ, RHC 67,771-MG, Judge Nefi Cordeiro, judged on 3/10/2016, DJe 3/17/2016 – Newsletter n. 579 ).
Bank details provided by the company to the tax authority and inquiry: The bank details provided to the tax authority by the inspected business company, after regular subpoena and regardless of prior judicial authorization, may be used to support the initiation of a police inquiry to determine the alleged practice of a crime against the tax order ( STJ, RHC 66.520-RJ, Justice Jorge Mussi, judged on 2/2/2016, DJe 2/15/2016 – Newsletter n. 577 ).
The initiation of a police inquiry prior to the definitive constitution of the tax credit is not cause for nullity of the criminal action, if it is evidenced that the tax was constituted before its filing. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).
Judgments:
HC 269546/SP, Rel. Minister Nefi Cordeiro, judged on 05/03/2016, DJE 05/12/2016
RHC 028621/CE, Rel. Minister Sebastião Reis Júnior, judged on 02/18/2016, DJE 03/08/2016
Crime against the tax order. Payment of the tax, even after the final decision, is cause for extinguishment of punishment: Article 9, § 2, of Law n. 10,684/2003. The payment of the tax debt, at any time, even after the advent of the final and unappealable conviction of the criminal conviction, is cause of extinction of the accused’s punishment (STJ, HC 362.478-SP, Reporting Justice Jorge Mussi, unanimously, judged on 9/14/2017, DJe 9/20/2017 – Newsletter 611).
There is no typicality in a crime that requires a tax credit as long as there is no assessment: Crime of embezzlement in criminal continuity. Notary. Absence of transfer of funds destined to the Development Fund of the State Judiciary. Termination of criminal proceedings. Lack of just cause. The criminal action that investigates the practice of the crime of embezzlement of a sui generis naturewith a narrow tax derivation, due to alleged appropriation, by Notary Public, of public values belonging to the Judiciary Development Fund must be suspended while the debt is pending deliberation at the administrative level due to installment payment before the State Attorney’s Office (…) in the present case , the crime presupposes a tax credit, still pending deliberation in the administrative area. Moreover, the criminal imputation under examination must be submitted to the same ratio that gave rise to entry n. 24 of the binding summary of the STF – according to which “a material crime against the tax order, provided for in art. 1, items I to IV, of Law nº 8.137/90, before the definitive assessment of the tax” –, since the facts narrated in the inaugural accusation presuppose the appropriation of values of a sui generis nature, however,STJ, RHC 75.768-RN, Rel. Min. Antônio Saldanha Palheiro, by majority, judged on 8/15/2017, DJe 9/11/2017 – Newsletter 611 ).
Payment of the penalty for the offense of not displaying tax books does not extinguish the penalty: Crime consisting of failing to comply with the determination of the tax authority (Art. 1, V and Sole Paragraph of Law n. 8.137/1990). No display of books and tax documents. The payment of the pecuniary penalty imposed on the taxpayer who fails to meet the requirements of the state tax authority regarding the display of books and tax documents does not fit any of the hypotheses of extinction of criminal liability provided for in paragraph 2 of article 9 of Law n. 10.864/2003 ( REsp 1.630.109-RJ, Reporting Minister Maria Thereza de Assis Moura, unanimously, judged on 2/14/2017, DJe 2/22/2017 – Newsletter 598 ).
The principle of insignificance applies when the amount withheld is less than R$ 20,000.00: The principle of insignificance must be applied to the crime of embezzlement (CP, art. 33416) when the amount withheld is less than R$ 20,000.00, provided that the evidence demonstrates that the accused is not a person habitually committing illicit acts of the same nature17 ( HC 155.347, rel. min. Dias Toffoli, DJE of 5-7-2018 ).
The configuration of embezzlement is independent of the administrative procedure: The existence of an administrative tax procedure with the subsequent constitution of the tax credit for the configuration of the crime of embezzlement is waived – CP, art. 334 ( HC 121.798, min. rel. Marco Aurélio, DJE of 13-6-2018 ).
During the installment payment of the tax debt, the prescription is suspended: The prescription of the punitive claim is suspended in the period in which the conditions for installment payment of the tax debt are being fulfilled, provided that the inclusion in the Refis Program (Tax Recovery Program) has occurred before the receipt of the complaint ( ARE 1,037,087 AgR, rel. min. Dias Toffoli, DJE of 9-5-2018 ).
