Eduardo da Costa Santos Menin
Lawyer at Marcos Martins Advogados
Article 103 of the Criminal Code states:
Unless otherwise provided, the offended party forfeits the right to file a complaint or representation if he does not exercise it within a period of 6 (six) months, counted from the day on which he came to know who the perpetrator of the crime is, or, in the case of § 3 of art. 100 of this Code, from the day on which the deadline for filing a complaint is exhausted.
From reading the aforementioned criminal law, it can be seen that once the time limit has elapsed, as established above, the victim loses their right to act due to the statute of limitations that applies to all types of private criminal action, i.e. those that depend on the representation of the offended party. In this case, the punishability of the perpetrator is extinguished. The state, on the other hand, loses its right to punish due to the statute of limitations.
If the victim is a minor, the deadline for representing him or herself or filing a criminal complaint “runs” to his or her legal representative, according to Precedent 594 of the STF: “The rights to want and to represent can be exercised independently by the offended party or his or her legal representative”.
For a better understanding, let’s take a practical look at how the limitation period works. Let’s assume that the facts that gave rise to the victim’s or offended party’s representation occurred on September 26, 2015, in turn, the victim has until February 26, 2015, that is, after six (6) months, the victim’s right to representation expires.
To corroborate what has been said so far, let’s take a look at the decision described above.
CRIMINAL. “HABEAS CORPUS. DEFAMATION AND SLANDER. LACK OF PROCEDURAL PREREQUISITES. POSSIBILITY OF REGULARIZATION ONLY UNTIL THE EXPIRY OF THE STATUTE OF LIMITATIONS. 1) The dismissal of a criminal action in a “habeas corpus” is only justified when there is flagrant illegal restraint, and the simple statement of the facts shows that the conduct is atypical, that there is no evidence to prove the authorship and materiality of the crime or that there is any exclusion of punishability Precedents of this Court and of the STJ. 2) The absence of a procedural prerequisite (art. 44 of the CPP) is a defect that can be remedied, but must be remedied before the expiry of the statute of limitations, otherwise it results in the extinction of punishability due to the statute of limitations Precedents of the STJ and of this Court. Illegal restraint, in this case, configured. The criminal action is dismissed and punishability is declared extinct, in relation to the offenses investigated in the origin, due to the statute of limitations.” (TJSP – Habeas Corpus No. 2098296-04.2015.8.26.0000, District of São Paulo. Vote nº 3731, Judging body: 8th Chamber of Criminal Law, Rapporteur: Alcides Malossi Junior, Judgment: 07/16/2015, Date of registration 07/27/2015).
If a complaint is filed or received after the six (6) months that the victim had to exercise his right of action, it will have expired. Consequently, if there is already a criminal action in progress, the defendant should receive the benefit of the extinction of his punishability due to decay.
In fact, this is not the current understanding of the case law of the São Paulo Court of Justice, both in the case of a police investigation whose investigation is dedicated to an offense in which the complaint has already been filed, and in the case of a criminal action that is stillborn due to the statute of limitations. Let’s see:
AGREE, in the 6th Extraordinary Criminal Chamber of the São Paulo Court of Justice, to render the following decision: “Grant the defense appeals to declare that the liability of DIEGO CARDOSO and TIAGO ROBERTO LOPES is extinguished, based on article 107, item IV, of the Penal Code, by virtue of the statute of limitations. V.U.”, in accordance with the vote of the Rapporteur, which integrates this judgment. (TJSP – Appeal No. 0014396-33.2010.8.26.0292, Rapporteur: Euvaldo Chaib, District of Jacareí, 6th Extraordinary Criminal Chamber, judgment 27/11/2015).
As can be seen, there is no way to live with the opening and follow-up of an investigation whose representation was made after the six (6) months that the victim had to exercise his right to complain.
Therefore, it can be concluded that the six-month time limit is purely procedural, as it is closely linked to an action by the offended party, which is nothing more than the exercise of their right of action.
