Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 88 CPP – Extraterritoriality and jurisdiction.

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Art. 88. In proceedings for crimes committed outside Brazilian territory,  the court of the capital of the state where the accused last resided will be competent. If he has never resided in Brazil, the court of the capital of the Republic will be competent.

Extraterritoriality and competence for the process and trial

Extraterritoriality:  This device deals with the application of criminal law to crimes committed abroad. It is the extraterritoriality of the jurisdiction. Offenses committed abroad that are subject to Brazilian law are described in  Article 7 of the Penal Code . The court of the capital of the state where the accused last resided is competent for the process and judgment. If the latter has never resided in Brazil, the competence rests with the court of the capital of the Republic.

Principles of universal protection and justice:  Item  I and paragraph 3 of  article 7 of  the Penal Code , by subjecting to Brazilian law crimes committed against the life or liberty of the President of the Republic, against property, public faith of the entities of the federation and the administration and the crime committed by a foreigner against a Brazilian, enshrine the  principle of real or protection . Item  II of article 7 , in turn, submits to Brazilian law the crimes that Brazil is obliged to repress by treaty or convention and those committed by Brazilians, enforces the  principle of universal justice .

Unconditioned and conditioned extraterritoriality:  The unconditional extraterritoriality  of the criminal law is verified in the crimes listed in  item I of article 7 of  the Penal Code,  since, with regard to them, the legislation does not impose any condition for the application of the criminal law. On the contrary,  paragraph 1  of article 7 states  :  In the cases of item I , the agent is punished according to Brazilian law, even if acquitted or convicted abroad . The  conditioned extraterritoriality  of criminal law is present in the crimes listed in  item II of article 7. The conditions for the criminal prosecution of these crimes are described in  paragraphs and  3 , letters “a” and “b” of article .

Constitutional Jurisdiction:  In addition to establishing where the process will take place, whether in the capital of the state where the accused last resided or in the Federal District, it is necessary to define the competent Justice, whether the Common State, the Military, the Electoral or the Federal. The electoral offense can be committed abroad. It suffices, by way of example, for a Brazilian abroad  to give, offer, promise, request or receive, for himself or for others, money, gift, or any other advantage, to obtain or give a vote and to obtain or promise abstention, even if the offer is not accepted  ( Article 299 of the Electoral Code ). Federal crime too. When an asset owned by the Union is abroad, someone commits  a criminal offense to its detriment (article 109, item IV of CF ).

Misdemeanors only within the national territory:  The rule of extraterritoriality does not apply to criminal misdemeanors. These are the words of the Criminal Misdemeanors Law ( Decree-Law No. 3688  , of October 3, 1941 ), in its 2nd article : Brazilian  law is only applicable to misdemeanors committed in the national territory .


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