Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 109 CPP – Official recognition of incompetence.

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Art. 109. If, at any stage of the proceeding, the judge recognizes a reason that  renders him incompetent, he will declare it in the records, whether or not there is an allegation on the part of the party, proceeding in the manner of the previous article.

Recognition of the cause of incompetence in the course of the process

The judge recognizing the reason that makes him incompetent in the course of the process:  The reason why the judge can recognize that he becomes incompetent can be a reason that already existed and that is uncovered by the evidence (new evidence or not), or it can be a new reason, that is, a new fact capable of producing incompetence. In this second case, we are faced with supervening incompetence. 

Absolute and relative incompetence:  Recognizing the reason that makes him incompetent, if the incompetence is absolute, the judge must declare it. If it is relative, it should give the parties the opportunity to express themselves, an opportunity in which they can argue lack of competence. Arguing, the judge will consider himself incompetent. If there is no argument, the jurisdiction will be extended. With the extension of competence, the judge, not foreseeing the probability of occurrence of real damage, must remain in the presidency of the process. 

Preexisting incompetence:  The reason why the judge can recognize your incompetence may be a reason that already existed. Example: an offense is committed in county A to hide another committed in county B. This fact is discovered during the investigation of the case in county A. The penalty for the crime committed in county B is higher. The judge of district A must consider himself incompetent and send the case to the judge of district B, where it must be judged together with the crime committed in that district (combination of articles 76, item II, 78, item II, letter “a” ).

Supervening incompetence:  Incompetence may be caused by a supervening fact. Deputies and Senators are inviolable, civilly and criminally, for any of their opinions, words and votes. From the issuance of the diploma, they will be submitted to trial before the Federal Supreme Court ( article 53, paragraph 1 of the CF ). The right to a special forum for those who hold office by election begins with the diploma, a formal act through which the Electoral Court certifies the election with the delivery of the diploma, enabling the candidate so far to effectively exercise the mandate (Electoral Code, article 215 ). If someone is responding to a process at the 1st instance of the State Justice, for example, with the diplomation, the judge becomes incompetent due to a supervening fact.

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