Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 92º CPP – Preliminary questions and incident proceedings.

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 Art. 92. If the decision on the existence of the infraction depends on the  solution of the dispute, which the judge deems serious and founded, on the marital status of the persons, the course of the criminal action will be suspended until the dispute is settled in the civil court by a previous sentence res judicata, without prejudice, however, to the questioning of witnesses and other evidence of an urgent nature.
Single paragraph. If it is the crime of public action, the Public Prosecutor’s Office, when necessary, will promote the civil action or continue the one that has been initiated, with the summons of the interested parties.

Procedural incidents: harmful issues and incident processes

Harmful issues and incident processes:  In some processes, impasses arise that need to be resolved before sentencing. These questions constitute the source of the so-called procedural incidents, which are verified in two formats: either preliminary questions or incident processes. The preliminary questions deal with matters of substantive law and are directly related to the existence of the criminal offense. They are those of articles 92 to 94 of the CPP. The incident processes are the exceptions ( articles 95 to 111 ), the restitution of seized things ( articles 118 to 124 ), the security measures ( articles 125 to 144 ), the incident of falsehood ( articles 145 to 148 ) and the incident of insanity mental (articles 149 to 154 ).

Controversy regarding the existence of an infraction based on marital status

Existence of the infraction:  The judge must suspend the process if the decision on the existence of the infraction depends on the solution of a serious and well-founded dispute about the marital status of the person. Suspension can only occur if the dispute over the person’s marital status influences the existence of the infraction, that is, the elements of the crime: typical, illegal and culpable fact. If the interference is in other circumstances, such as mitigating or aggravating the crimes, evidence of their practice, etc., it is not the case of suspension of the process.

Serious and well-founded controversy over the marital status of persons:  The controversy must be serious and well-founded. By founded, it is understood, there must be a beginning of evidence that is capable of convincing the need to decide the issue in the civil court. And the issue can only involve people’s marital status. It cannot, for example, concern the validity of a purchase and sale contract, or the ownership of an asset. A classic example in the doctrine of discussion about the marital status that influences the existence of the infraction is the validity of the first marriage in the crime of bigamy.

Suspension of action, prescription and appropriate remedies

Suspension of the criminal action and suspension of the statute of limitations:  The course of the criminal action is suspended until the dispute is settled in the civil court by a final judgment. In accordance with  article 116, item I of the Penal Code , which deals with the impeding causes of prescription, this does not run until the issue on which the recognition of the existence of the crime depends is resolved, in another proceeding. Recalling, in the suspension of prescription, when the deadline runs again, it restarts the count where it left off. In the interruption, differently, returning to run the deadline, it restarts the counting (from the beginning).

Appropriate appeals:  There is an appeal in the strict sense against the decision that orders the suspension of the proceedings due to a preliminary ruling ( article 581, item XVI, of the CPP ), that is, against the decision that determines the suspension of the proceedings based on article 92 of the CPP. There is no legal provision for an appeal against the decision denying the request for suspension of the process. In this case, the accused can make use of  habeas corpus , and the public prosecutor, the writ of mandamus. See the heading Writ of mandamus and habeas corpus  in comments to article 581. See also heading  Writ of mandamus  in notes to article 120. 

Urgent evidence, promotion of civil action and binding effect

Production of urgent evidence:  Suspended the criminal process, as a rule, evidence should no longer be carried out. Except, exceptionally, if there is urgency, which sometimes happens with expertise, search and seizures and questioning of some witnesses. The urgency of the measure must be substantiated.

Promotion of civil action:  If the civil action is already in progress, the Public Prosecutor’s Office should monitor it, seeking to speed it up. If not, promote it. In the case of a private action crime, it is up to the plaintiff to propose and proceed with the action.

Binding effect:  The final decision in civil proceedings binds the criminal judge. The criminal judge does not have the power to accept or not what was decided in the civil action. What is decided in this action has a binding effect on the criminal process.


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