Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 108 CPP – Exception of incompetence.

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Art. 108. The exception of incompetence of the court may be objected, verbally or in writing, within the defense period.
§ 1 If, after hearing the Public Prosecutor’s Office, the declination is accepted, the case will be sent to the competent court, where, once the previous acts have been ratified, the process will continue.
§ 2. If the incompetence is rejected, the judge will continue with the case, making the declinatory term, if verbally formulated.

Absolute and relative competence

Absolute competence:  Absolute competence arises when jurisdiction is distributed, either by reason of the matter, or by prerogative of function. It does not admit extension. Nullity resulting from absolute lack of competence does not depend on timely arguments, and may be recognized even after the judgment becomes final and unappealable, including by means of  habeas corpus . Competence constitutes an essential, structural act of the process, the lack of which implies absolute nullity, of presumed damage (see comments on article  564, item I ). See also heading  Absolute competence, relative competence and extension of competence  in comments to article 69.

Relative competence:  Relative competence is extendable, that is, it can be extended if there is no timely argument. Relative jurisdiction is normally verified when considering the place of the infraction, the domicile of the accused, the nature of the infraction when related to determinations of judicial organization laws, the distribution, the connection or continence and the prevention. Precedent  33 of the STJ   says that relative incompetence cannot be declared ex officio. This Precedent was created, and is valid, for civil proceedings. Not for the criminal. In criminal proceedings, the norm of  article 110 applies, which determines that, if at any stage of the proceeding the judge recognizes a reason that renders him incompetent, he must declare it in the records, whether or not there is an allegation on the part. It should be considered that, in the case of extension of relative jurisdiction due to lack of timely argument, if the judge finds that the extended jurisdiction is harming the party, it may be deemed incompetent. In this case, it is important that you do so as soon as possible, avoiding wasting time and performing procedural acts that will be rendered useless.

Legitimacy and argument by the parties

Legitimacy:  The legitimacy to exception the incompetence ( declinatoria fori ) belongs to the Public Prosecutor, assistant to the prosecution, accused, plaintiff and defendant. Article  271  provides that the assistant to the prosecution is allowed to propose means of proof, request questions from witnesses, add the libel and the pleadings, participate in the oral debate and reason the appeals filed by the Public Ministry, or by itself, in the cases of articles  584, § 1 , and  598 . This list of acts is not exhaustive, as it cannot be required that in just one provision of the Code the legislator lists all the procedural acts that can be performed by the assistant. If required, it would be an extremely extensive device. By all evidence, the Article 271  is an example. 

Argument by the defense:  Once the denunciation or complaint has been offered and received, the judge orders the summons of the accused to respond to the accusation in writing within a period of ten days. In the answer, the accused must allege everything that is of interest to his defense and indicate evidence. This answer, although there is still no consensus, is called prior defense. The exception of incompetence must be filed at that time, but separately, in a separate petition. This is what the  first paragraph of article 396-A says :  The exception will be processed separately, under the terms of arts. 95 to 112 of this Code . Article  111  repeats the same command by saying that the exceptions will be processed in separate records and will not suspend, as a rule, the progress of the criminal action.

Arguição by the accusation:  It must be carried out by a separate piece, accompanying the complaint or complaint. The exception will be processed separately. As a rule, it does not suspend the criminal action. 

Appeals, Actions and Preliminary Appeal

Appeals, actions and preliminary:  Against the decision of the judge who recognizes the incompetence, ex officio or in response to a simple request of the party, an appeal in the strict sense can be made based on  article 581, item II . To challenge a court decision that upholds the exception of incompetence, the appropriate remedy is also the one in the strict sense, only based on  article 581, item III . There is no provision for an appeal against the decision maintaining jurisdiction. In this case, habeas corpus and writ   of mandamus can be used. The nullity of the process due to lack of jurisdiction of the court may also be argued in a preliminary appeal.

Negative conflict, ratification, nullity of acts and prescription

Negative conflict of jurisdiction:  Once the lack of jurisdiction is recognized, the judge to whom the records are sent may understand that he/she is also not competent. In this case, that magistrate may raise the negative conflict of competence ( article 114, item I  with  article 115, item III ).

Ratification and declaration of nullity of acts:  This provision states that  the case will be sent to the competent court where, once the previous acts have been ratified, the process will continue . Article  567  clarifies that  the incompetence of the court annuls only the decision-making acts, and the process, when the nullity is declared, must be sent to the competent judge . Article  573 and its paragraphs  prescribe that  the acts whose nullity has not been remedied, in the form of the previous articles, will be renewed or rectified. The nullity of an act, once declared, will cause the nullity of the acts that directly depend on it or are a consequence. The judge pronouncing the nullity will declare the acts to which it extends. Let’s keep it simple. First question: who decides what is null and what is not null in the process, the judge who declares himself incompetent or the one who receives the records? Responding, it is the judge who receives the records. It is this person who will preside over and manage the process. He is the one who knows the strategy he will give to the procedural process. Paragraph  2 of article 573  cannot be taken literally. When the court declares the nullity of a process on appeal, it normally leaves the decision on which “ acts to which it extends” to the judge of 1st instance.  That is, the Courts do not apply the literality of  paragraph 2 of article 573 . Furthermore, this Article 108 determines that the case be sent to the competent court, where, once the previous acts have been ratified , the process will continue. Therefore, it is the competent court who will ratify the previous acts and recognize the nullity of the unusable ones. If the process arrives from an absolutely incompetent judge, all his acts are useless, the decision-making and the instructive ones. Absolute incompetence, once recognized, and the records are sent to the competent judge, he will have to renew all the acts of the process, not only the decision-making ones, but also the instructive ones, since, in kind, the acts of the annulled process are legally non-existent. As for relative incompetence, only decision-making acts are void. However, all acts that are a consequence of these deliberations must be annulled and redone ( paragraphs 1 and 2 of article 573). The other acts may be ratified (confirmed). 

Receipt of the complaint and interruption of the prescription:  Receiving the complaint constitutes a decision-making act. Once the incompetence is recognized, the receipt of the complaint carried out by an incompetent judge does not have the effect of interrupting the course of the prescription ( article 117, item I of the CP ).


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