Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 85º CPP – Special jurisdiction and exception of truth.

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Art. 85. In proceedings for crimes against honor, in which  the plaintiffs are persons that the Constitution subjects to the jurisdiction of the Federal Supreme Court and the courts of appeal, that or those courts will be responsible for the judgment, when opposed and admitted the exception of truth.

Special forum, crimes against honor and exception of truth

Which courts? Need for an updated reading:  The wording of article 85 is out of date. It was written when the STJ did not exist. The extinct TFR was created in 1947, after the publication of the CPP. This does not mean that the device is not usable. It just needs to be contextualized. In lawsuits for crimes against honor filed against persons that the Constitution subjects to the jurisdiction of the Federal Supreme Court, the Superior Court of Justice, the regional federal courts and the courts of Justice, these courts will be responsible for the judgment, when opposing and the exception of truth is admitted. About the persons and functions entitled to jurisdiction by prerogative of function, see comments to  article 84 of the CPP .

The plaintiff and the exception of truth:  The plaintiff dealt with in this device is the one who has the right to the forum by prerogative of function. The norm clarifies that, when the exception of truth is opposed, it will be judged by the court where the action for crime against honor was proposed, that is, in the special forum.

Only the judgment is assigned to the special forum:  The procedure for the exception of truth follows the rite of  article 523 of the CPP . Once the exception of the truth or notoriety of the imputed fact has been offered, the plaintiff may contest the exception within a period of two days, and the witnesses listed in the complaint may be questioned, or others indicated within that period, to replace the first ones, or to complete the legal maximum. . Strictly speaking, only the judgment is assigned to the special forum, leaving the instruction to the 1 st instance  (it is the express letter of article 85), but there is no impediment for the rapporteur to decide to process the exception).

Hypotheses that admit the truth exception:  Cases of slander ( article 138, paragraph 3 of  the CP ) and defamation if the victim is a public official and the offense is related to the exercise of his/her duties ( article 139, sole paragraph of the CP ). Slander is the false imputation to someone in fact typified as a crime. In defamation, the imputed fact is not a crime. In the insult, there is no imputation of fact, but of negative particularity that affects dignity.

Outdated summary:  “For criminal action for offense to honor, the exception of the truth regarding the performance of a public function being admissible, special competence prevails by function prerogative, even if the offended person’s functional exercise has already ceased”, appears in the  summary 396 of the STF , which is outdated. Once the offended/plaintiff’s possession ceases, the right to special jurisdiction ends. See the subtitle  Beginning and end of the special forum in the heading News. Initial and final term of the special forum , in comments to article 84.


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