Infringing embargoes is a resource that exists in criminal proceedings. It is used by the defendant when he does not agree with a decision in the case.
The infringing embargoes allow the decision to be analyzed again and changed, according to the request of the accused.
What are infringing embargoes for?
Embargoes are used to ask that an issue relating to the crime being tried or the accused be reconsidered. In law these issues are called merit.
The infringing embargoes can only be used by the defendant's defense in the decision that takes place in a Superior Court. The Superior Court's decision is a second decision in the case and only takes place after the first judgment made by a Judge.
If the accused uses the appeal of infringing embargoes, a Panel formed by other Judges will analyze and review the decision of the previous one.
When can infringing embargoes be used?
For the infringing embargoes to be used, it is enough that one of the Judges of the Panel does not agree with the others. That is, if the decision is not made by all the judges, the defendant can ask for a review of it.
Infringing embargoes can only be used to request the review of two types of decisions: an appeal decision or an appeal decision in the strict sense.
An appeal is an appeal in a final judgment. It is used if:
- there is a nullity in the process,
- the decision is contrary to the law,
- the decision is against the evidence presented in the process,
- there is an error in the application of the penalty.
The resource in the strict sense is broader and can be used in several cases. Examples are:
- against a decision that says the judge cannot judge the case,
- about the application of bail,
- about probation,
- arrest in the act.
Infringing embargoes must be used if the defendant's defense wants to request a review of the decision in either of these two cases.
Deadline for infringing embargoes
According to the Code of Criminal Procedure, the defendant's defense has 10 days to use infringing embargoes.
The term begins to run from the date on which the decision on the appeal or appeal in the strict sense was published.
Embargoes violating the Code of Criminal Procedure
The infringing embargoes are provided for in art. 609, sole paragraph of the Code of Criminal Procedure (CPP).
Single paragraph. When the second instance decision is not unanimous, unfavorable to the defendant, infringing motions and of nullity, which may be opposed within 10 (ten) days from the publication of the judgment, in the form of the art. 613.
Embargoes violating the Code of Civil Procedure
Infringing embargoes also existed in civil law cases. But the new 2015 Code of Civil Procedure (CPC) no longer brought this possibility.
There is still legal discussion on this subject, but most legal professionals understand that the embargoes infringing the Civil Procedure were replaced by another type of judgment.
In this case, in accordance with art. 942 of the CPC, if the result of the decision is not unanimous among the judges, the judgment must continue to take place with the participation of other judges. These new Judges must be in a sufficient amount to allow the initial result to be changed.
See also the meaning of Motion for Clarification and Third Party Embargoes.