Art. 93. If the recognition of the existence of the criminal offense depends on a decision on a question other than that provided for in the previous article, within the competence of the civil court, and if an action has been proposed in this court to resolve it, the criminal judge may, provided that this matter is of a difficult solution and does not deal with a right whose proof is limited by civil law, suspend the course of the process, after questioning the witnesses and carrying out other tests of an urgent nature.
§ 1 The judge will determine the period of suspension, which may be reasonably extended, if the delay is not attributable to the party. Once the deadline has expired, without the civil judge having issued a decision, the criminal judge will proceed with the process, resuming his competence to resolve, in fact and in law, all matters of the prosecution or defense.
§ 2 The order denying the suspension cannot be appealed.
§ 3. Once the proceedings are suspended, and in the case of a public action crime, the Public Prosecutor’s Office will be responsible for immediately intervening in the civil case, in order to promote its rapid progress.
Recognition of a criminal offense and a different issue from the previous provision
Recognition of the existence of a criminal offense: As in the previous provision, in this one, the course of the criminal proceedings can only be suspended if what is being discussed in the civil action influences the elements of the offense, namely, typical, unlawful and culpable fact. If the influence relates to other circumstances, it is not a case of suspending the process.
Question different from that provided for in the previous article: The issue under discussion in the civil action must be different from that provided for in the previous article, that is, it cannot be about the marital status of people. If so, that provision applies, not this one. The present device is suitable when, for example, someone is accused of the crime of embezzlement in a criminal proceeding, and a parallel civil action of accountability is being processed; when faced with the accusation of a crime against property in a criminal proceeding, the property is litigated in civil proceedings.
External harmful matter and embezzlement crime: Even if the embezzlement is a formal crime, the existence of an administrative or judicial decision favorable to the taxpayer – annulling the infraction notice, the forfeiture report and the tax administrative process – characterizes an optional external harmful matter which authorizes the suspension of criminal proceedings (art. 93 of the CPP) ( REsp 1.413.829-CE, Reporting Min. Maria Thereza de Assis Moura, judged on 11/11/2014. – Newsletter 552 ).
Action in progress, production of evidence not limited by civil law
Action must already be proposed in the civil court: While, in the previous article, the action may not be in progress at the time of the suspension of the process, in this device it is presupposed for the suspension of the criminal process that there is already a civil action in progress.
Difficult issue whose proof the law is not limited by civil law: The issue to be resolved has to be complex, difficult to solve from the point of view of the evidence and the technical-legal aspects involved. If the criminal judge himself can resolve them, he should do so, as civil action can take a long time to reach its final solution. The litigation to be resolved in civil proceedings cannot be one that civil law imposes limitations on the possibility of producing evidence, as these reservations would violate the investigation of the real truth, the objective of criminal proceedings.
Suspension of proceedings, prescription and appeals
Suspension of proceedings: Suspension of proceedings is, in principle, optional. Before suspending, the judge must question the witnesses and order other tests of an urgent nature to be carried out. It must set a period for the suspension, which may be reasonably extended, if the delay is not attributable to the party. Once the period has expired without the civil judge having issued a decision, the criminal judge will proceed with the process, resuming his competence to resolve all matters of the prosecution or defense.
Suspension and prescription: Pursuant to article 116, item I of the Penal Code , the prescription is suspended, since, in its words, the prescription does not run until it is resolved, in another process, an issue on which the recognition of the existence of the crime depends.
Suspension and appeals: The decision that suspends the proceedings based on the present device may be appealed in the strict sense based on article 581, item XVI, since there is an order of “suspension of the proceedings, due to a preliminary ruling”. Pursuant to paragraph 2 of this Article 93, there is no appeal against the decision denying the suspension. It is necessary to allow some flexibility to the letter of the law. In the case of an extremely complex and difficult-to-solve issue, whose elucidation is about to be definitively handed over by the civil jurisdiction, regarding which the evidence is scarce and poor in the criminal process, making it impossible to have an adequate and correct view of the issue, it is appropriate the filing of habeas corpus , or writ of mandamus (by the Public Prosecutor’s Office), with the aim of suspending the criminal proceedings.
The process is only suspended if the disputed facts cannot be clarified in the investigation : The suspension of the process is only justified when it is not possible during the investigation to clarify the disputed facts ( Judge Salise Monteiro Sanchotene – TRF4 – AC 5005095-84.2014.4.04. 7210 ).
Promotion of civil action and binding effect
Promotion of civil action: In the case of a public action crime, the Public Prosecutor’s Office must monitor the civil action, seeking to speed it up. If it is a private action crime, it is up to the plaintiff to proceed with the action.
Binding effect: The final decision in civil proceedings binds the criminal judge. Once the criminal action has been suspended pending the outcome of the civil action, the criminal judge does not have the power to accept or reject what is decided in the civil action. What is decided in this action has a binding effect on the criminal process.