Art. 48. The complaint against any of the perpetrators of the crime will require the prosecution of all, and the Public Prosecutor’s Office will ensure its indivisibility.
https://www.youtube.com/embed/kLdz_xMubUo?feature=oembedThis video is repeated in articles 41, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, as it deals with all of them. Subjects: complaint, elements, power of attorney, indivisibility, waiver and pardon
complaint and indivisibility
Notion: Criminal action is governed by the principle of indivisibility. The principle of indivisibility stems from the obligation or legality of the criminal action. Whether the criminal action is public or private, it is indivisible, that is, it must be filed against all those against whom there is evidence. This does not mean that the Public Prosecutor’s Office must file a complaint against all those who were indicted in the investigation, it does mean that it must file a lawsuit against all those against whom the prosecutor believes there is sufficient evidence to denounce, whether indicted or not in the police inquiry. Against anyone who does not have just cause, even if he has been indicted, a complaint must not be filed. Such behavior will not imply a breach of the indivisibility rule.
Complaint that violates the principle. Providence: In denunciation, in a crime of public criminal action, violating the principle of indivisibility, by not attributing the facts in relation to the person against whom there is evidence, the judge must receive the non-attribution as a request for filing (implicit) and act in accordance with accordance with the provisions of article 28 , ordering the referral of the inquiry to the attorney general. Measure to be taken without prejudice to the validity and receipt of the complaint offered against the other defendant(s).
Complaint that violates the principle of indivisibility: Complaints that violate the principle of indivisibility, through the non-inclusion of a person against whom there is evidence, must not be received by the magistrate. And, if received, there is no impediment for the judge to go back, annulling the act of receipt. The MP can – and should – warn the judge of non-compliance with the rule of indivisibility. The MP cannot add to the complaint ( article 46, second paragraph ) in order to include a person against whom there is weight of evidence, since the criminal action is exclusive to the victim.. The prosecutor cannot, in addition, include defendant. It can, yes, launch a quota warning the plaintiff that the non-inclusion of any agent implies waiver of the right of complaint in relation to all. Next, the plaintiff must be seen to decide whether or not to include it. The non-inclusion of a person in the complaint implies waiver of the right of complaint, applying the provisions of article 49, according to which the waiver of the right of complaint in relation to one of the perpetrators of the crime will be extended to all.
Unknown agent: If one of the perpetrators of the crime has not been discovered, it is not known who it is, there is no violation of the principle of indivisibility if the criminal complaint is filed only against those known.
Jurisprudence
Complaint that violates indivisibility : The complaint (and the process) is null if it was offered only against one of the participants in the crime (RJTJRS 92/109). As the crime was committed by some people together, all qualified in the police investigation, the complaint must include all of them as perpetrators of the crime, under penalty of ineptitude (TRF – 1st Region – DJU 03.12.92 – p. 40.762). Since the crime was committed by some people together, all qualified in the police investigation, the complaint must include all of them as perpetrators of the crime under penalty of ineptitude (RCCR 9201199767, TRF-1ª, Fourth Panel, DJU 3.12.92, p. 40,762). The error of the above decisions is manifest. The following decision was better: The fact, in itself, that the MP’s representative fails to include one or some of the accused in the complaint does not make it null,
Violation of indivisibility in the complaint. Consequences : Failure to file a complaint against one of the offenders is equivalent to waiver, which extends to the other offenders (RT 653/337).
Wanted. Exclusion by the judge : It is lawful for the judge to exclude from the complaint those against whom there are no evidentiary elements (RT 631/350).
