Publications - 23/11/20
Sixth Panel of the Brazilian Superior Court of Justice changes its jurisprudence regarding Article 226 of the Criminal Procedure Code
The Sixth Panel of the Brazilian Superior Court of Justice, on October 27, 2020, recognized the invalidity of personal recognition with a photograph at a police station and acquitted the defendant accused of the crime of robbery, in the Habeas Corpus n. 598.886 / SC, reported by Minister Rogerio Schietti Cruz. The trial included the participation of the “Instituto de Defesa do Direito de Defesa – Márcio Thomaz Bastos” and the NGO Innocence Project Brazil.
In this decision, it was understood that, considering the risks of a flawed recognition, the inobservance of the procedure established in Article 226 of the Criminal Procedure Code invalidates the act and prevents it from being used to substantiate a conviction, even if that recognition was later confirmed in court.
The Habeas Corpus was filed against a decision of the Court of Justice of Santa Catarina, in which the defendants’ first conviction for the crime of robbery was maintained, as predicted in article 157, §2º, item II, and §2-A, item I, of the Penal Code (armed robbery).
In this instance, the defense upheld the nullity of extrajudicial recognition in the face of one of the defendants, who was recognized at the police station by means of a photograph of himself presented to the victims, in a procedure that is not predicted in the article 226 of the Criminal Procedure Code.
The Court of Justice of Santa Catarina rejected the arguments brought by the defense, maintaining that “(…) the provisions of art. 226 of the Criminal Procedure Code, which establishes the procedure to be followed for the recognition of persons and objects, are simple recommendations, and non-compliance does not, in itself, result in procedural invalidity”.
The understanding signed by the Court is nothing more than an expression of a broad and consolidated jurisprudence that recognizes the provisions of article 226 of the Code of Criminal Procedure as a mere “legal recommendation”, and, therefore, not binding. Hence, it allows that authorities do not observe and follow what is determined in the above mentioned provision, especially when it is not possible to perform the procedure in the manner prescribed by law. On this grounds, the decision even mentioned the jurisprudence from the Superior Court of Justice, in the judgements of the HC n. 525.027/SP and the AgRg in HC no. 477.128/SP, which reproduce this understanding.
The new understanding adopted by the Sixth Panel of the Superior Court of Justice generated a jurisprudential disagreement, creating important jurisprudence that may influence new decisions in this regard.
Furthermore, despite the fact that the Court ruled only on the illegality of the recognition made by photograph, such understanding may extend to other recurring irregularities in the procedures applied at the police station, such as the absence of placing other people beside the investigated and the lack of previous description of the suspect by the witness before the act.
 The brazilian higher court when it comes down to cases concerning violations of federal law.