Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 301º CPP – Active and passive subjects of flagrante delicto.

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Art. 301. Any of the people may and the police authorities and their agents shall arrest anyone found in flagrante delicto.

Word origin, justification, nature and misdemeanors

Origin of the word:  Flagrante comes from the Latin  flagrans , “that which burns, fiery”, from the verb  flagrare , “to burn”, from the Indo-European root  bhleg , “to burn”. It’s the crime still burning. In flagrante delicto is the state of someone who is committing a certain infraction, has just committed it, is pursued shortly after a situation in which he or she is presumed to be the author of the infraction, or is found shortly afterwards with instruments, weapons, objects or papers that presume to be the perpetrator of the offence. Arrest in flagrante delicto  is the one that must be carried out compulsorily by the police authority, and that can be carried out by any person, to arrest anyone who is found in flagrante delicto. The  arrest warrant it is the documentation of the flagrante delicto and the arrest. It is a piece prepared after presenting the prisoner to the competent authority, after hearing the driver, the witnesses and the accused.

Institute’s justification:  Someone is stealing wallets downtown. If there is no immediate action to stop this conduct, the thefts committed by the agent will not end. Thus, one of the justifications for arrest in flagrante delicto is to stop the continuation of the criminal practice. Another justification is its preventive nature. If the thief was stealing a car on a public road without a way to curb this practice, the crime would be much easier. Arrest in flagrante delicto constitutes a self-defense resource for society, as it aims to stop criminal conduct.

Nature of the institute: Arrest in flagrante delicto has a precautionary-administrative nature. This is a matter of public administration caution. It is also pre-procedural (before the criminal process). It has an administrative nature, since it is regulated by rules of administrative law, since the arrest warrant in flagrante delicto is the inaugural phase of the police investigation, a public administration procedure. The fact that a private person makes an arrest does not remove its administrative character, insofar as the formalization of the arrest will be carried out by an administrative body, the police. In addition to being precautionary-administrative, it is a judicial pre-cautionary measure, as it precedes a possible application of a precautionary measure by the Judiciary (temporary, preventive detention or precautionary measure other than prison). Thus, its nature is “long”, because it is a precautionary-administrative pre-procedural judicial pre-cautionary measure. But in essence, with regard specifically to its legal nature, and at this point what must be considered are the norms that regulate it, it is just a precautionary-administrative one.

Applies to misdemeanors:  Not only is the commission of a crime subject to arrest in flagrante delicto, the misdemeanor as well. 

Constitutional rights:  Article  5. of the CF in its items LXII to LXVI  establishes some rights of the price in the hypothesis of arrest in flagrante: LXII – the arrest of any person and the place where he is will be communicated immediately to the competent judge and to the family of the prisoner or to the person indicated by him ; LXIII – the prisoner will be informed of his rights, including the right to remain silent, being assured the assistance of his family and a lawyer; LXIV – the prisoner has the right to identify those responsible for his arrest or for his police interrogation; LXV – the illegal arrest will be immediately relaxed by the judicial authority; LXVI – no one shall be taken to prison or kept there, when the law admits provisional release, with or without bail.

Active and passive subject

Active subject:  Arrest in flagrante delicto is compulsory or optional. Compulsory law stems from the police officer’s obligation to carry it out (whether civil, federal or military police). It matters little whether the police officer is out of duty or on vacation, the obligation remains. The police officer who fails to act can be considered a participant in the crime committed ( article 13, paragraph 2 of the CP ).  Another hypothesis of the result of the omission of the agent to act is the crime of prevarication, which consists of delaying or failing to perform, improperly, an official act, or performing it against the express provision of the law, to satisfy personal interest or feeling (article 319 of CP). It is optional when carried out by any citizen. When carried out by a police officer, it is a strict fulfillment of legal duty. For any citizen, it constitutes the legal exercise of a right ( article 23, item III, of CP ).

Taxable subject:  As a general rule, anyone can be subject to arrest in flagrante delicto. But there are exceptions and restrictions.

Restrictions on arrest in flagrante delicto

Diplomatic representatives:  They cannot be arrested in flagrante delicto. This is the wording of  article 1 : “The criminal procedure shall be governed, throughout the Brazilian territory, by this Code, with the exception of: I – the treaties, conventions and rules of international law”.

Judge of Law:  Can only be arrested in flagrante delicto for a non-bailable crime, in which case the authority will immediately communicate and present the magistrate to the President of the Court to which he is bound (article 33, item II of the LOMN).

Public Prosecutor and Public Prosecutor:  They can only be arrested in flagrante delicto for a non-bailable crime, in which case the authority, within a maximum period of twenty-four hours, will communicate and present the member of the Public Prosecutor’s Office to the Attorney General of Justice (article 40, item III, of the LONMP) or to the Attorney General of the Republic ( Complementary Law n. 75/93 ).

Lawyer:  The lawyer is entitled to the presence of a representative of the OAB, when arrested in flagrante delicto, for reasons related to the practice of law, for the drawing up of the respective record, under penalty of nullity and, in other cases, express communication to the section of the OAB ( article 7, item IV of Law n. 8.906/94 – Statute of the OAB ).

President of the Republic:  As long as there is no conviction, in common infractions, the President of the Republic will not be subject to imprisonment ( article 86, paragraph 3, of the CF ). 

Members of the National Congress:  Members of the National Congress cannot be arrested, except in flagrante delicto of a non-bailable crime. In this case, the records will be sent within 24 hours to the respective House, so that, by the vote of the majority of its members, it decides on the arrest ( article 53, paragraph 2, of the CF ). According to  Precedent 397 of the STF  ( also see jurisprudence subsequent to the publication of the Precedent ), the police power of the Chamber of Deputies and the Federal Senate, in the event of a crime committed on their premises, includes, depending on the regiment, the arrest in flagrante delicto of the accused and carrying out the investigation.

State Deputies:  Cannot be arrested, except in flagrante delicto of a non-bailable crime (article 27, paragraph 1 with article 53, paragraph 2 of the CF).

Driver in a traffic accident:  The driver of a vehicle, in cases of traffic accidents in which he is a victim, will not be arrested in flagrante delicto, nor will bail be required, if he provides immediate and integral assistance to the driver (article 301 of the CTN ) .

Presentation of the agent in ignored authorship:  Being ignored the authorship of the crime, presenting the author of the crime before the police authority, he is not subject to arrest in flagrante delicto. Such a precept derives from logic. There is no need to speak of flagrante delicto insofar as the authorship is unknown. However, there is no impediment, given the reasons, for the magistrate to order preventive detention.

Special Courts:  The police authority that becomes aware of the occurrence will draw up a detailed term and immediately forward it to the Court, with the author of the fact and the victim, arranging for the requests for the necessary expert examinations. The author of the act who, after drawing up the term, is immediately forwarded to the Court or assumes the commitment to appear there, arrest in flagrante delicto shall not be imposed, nor shall bail be required (article 69, sole paragraph of the Law of Special Courts – Law 9,099/95 ).

Possession of drugs for personal use:  Whoever acquires, keeps, has in storage, transports or brings drugs without authorization or in violation of legal or regulatory provisions (article 28 of Law n. 11.3473/20016 ) for personal use, is forwarded to the judge or undertakes to attend him, a detailed term being drawn up.

Private and conditional criminal action:  In private or public criminal action conditioned to the representation or requisition, the drawing up of the arrest warrant in flagrante delicto and the maintenance of the prison are conditioned to the manifestation of the offended party the representation or requisition, which must be offered in a 24 hour period.


Situation of flagrance and determination of precautionary arrest of a parliamentarian:  Present situation of flagrance and the requirements of art. 312 of the CPP, the precautionary arrest of a federal parliamentarian is appropriate ( AC 4.036 MC-REF  and AC 4.039 MC-REF,  rel. min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and ruling pending publication, respectively  – Newsletter 809, Second Panel). 

Imprisonment of a federal parliamentarian has the nature of precautionary imprisonment for the purposes of deliberation by the legislative house:  Once the factual and legal requirements have been fulfilled, the imprisonment of a federal parliamentarian has the nature of precautionary imprisonment for the purposes of deliberation by the respective legislative house ( AC 4.036 MC-REF  and AC 4.039 MC-REF,  rel. Min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and judgment pending publication, respectively  – Newsletter 809, Second Panel). 

Woman with a child of up to twelve years of age and house arrest:  Pre-trial detention may be replaced by house arrest when the agent is a woman with a child of up to twelve years of age, and the court must establish the respective conditions ( HC 136.408, rel. min. Marco Aurélio , DJE of 19-2-2018 ).


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