Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 113º CPP – Positive and negative conflict of competence.

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Art. 113. Questions relating to jurisdiction will be resolved not only  by their own exception, but also by the positive or negative conflict of jurisdiction.

Conflict of jurisdiction and conflict of jurisdiction

Conflict of jurisdiction and conflict of jurisdiction: Jurisdiction is the power to say the law. To say and to impose. To say and impose not only material law, substantive law, but also adjective, procedural law. The judge can only hear, process and judge those cases that are submitted to him for which he has competence, that is to say, in the distribution of jurisdiction, touching the process that comes to his knowledge. Competence is division, allocation of jurisdiction. There is a doctrinal understanding in the sense that it is only possible for a conflict of jurisdiction to occur when different courts are involved (Federal and State, for example). Within the scope of the same Justice, only the conflict of jurisdiction would be viable. The idea is not convincing. Where there is competence, there is jurisdiction. There is no empty competence, no power to judge, no jurisdiction, and therefore the concept of conflict of jurisdiction unaccompanied by jurisdictional conflict is unimaginable. The jurisdiction of the State Judge of the 1st criminal court is different from that of a Federal Judge in terms of the matter. It is also distinct from that of the judge of the 2nd criminal court, and of the latter on account of the distribution. It doesn’t matter that the jurisdiction is different from one because of the matter, and from another, because of the distribution, the fact is that they are different jurisdictions, and, because they are different, they can come into conflict. Definitely, the judge of the 1st court does not have jurisdiction over the processes of the judge that are in the 2nd court, nor vice versa. If there is a conflict of competence between them regarding a certain process, it will necessarily be a debate regarding who has the power to say the right, that is, a conflict of jurisdiction. Having made these considerations, it is concluded that it makes no difference to use the expression conflict of jurisdiction or jurisdiction. Both are correct, regardless of whether the CF prefers to use the first (articles 102, I, “o”, 105, I, “d” and 108, I, “e”).

Unity of the jurisdiction and its division into competences:  Doctrinally, the jurisdiction is considered to be one and indivisible. Being one and indivisible, how to explain that it is divided into competences? The contradiction is apparent. The unity of jurisdiction concerns the sovereignty of the State, which cannot be divided. In this sense, and only in this sense, multiple jurisdictions would imply multiple sovereignties. The competence that allocates the jurisdiction to distribute it between Courts and judges does not give rise to the plurality of sovereignties. It is the same jurisdiction, which is divided, but which remains one from the point of view of sovereignty.

There is no conflict between the court and the judge linked to it: There is no conflict of jurisdiction between the court and the judge hierarchically linked to it. If the jurisdiction is related by hierarchy, there is no question of a conflict of jurisdiction. Public Prosecutors Eugênio Pacelli and Douglas Fischer, in Comments on article 113 of the CPP, rightly observe that “there may be a conflict of jurisdiction between judges (federal, military, state, etc.) and courts (of second instance), provided that the former (the judge) is not functionally linked to the latter (the court). Thus, a judge of Minas Gerais may raise a conflict of jurisdiction with the Court of Justice of São Paulo, however, he cannot do so in relation to the Court of Justice of Minas Gerais, to which he is bound and subject to the respective jurisdictional hierarchy” (Pacelli, Eugênio and Fischer, Douglas. Comments on the Code of Criminal Procedure and its Jurisprudence.  4th Ed. Atlas Publisher: 2012). Giving some more examples. A state judge from Rio Grande do Sul cannot raise a conflict with the Court of Justice of Rio Grande do Sul. It can, however, raise conflicts with: a state judge from Santa Catarina, with the Court of Justice of Santa Catarina, with a Federal Judge, with a Federal Regional Court. The competence to judge these conflicts will be of the STJ ( article 105, item I, “d”, of the CF ). If it raises a conflict with another judge from Rio Grande do Sul, the jurisdiction to judge will be the Court of Justice of Rio Grande do Sul.

Conflict, STF and STJ

Jurisdiction of the STF:  It is incumbent upon the Federal Supreme Court to process and judge, originally, conflicts of jurisdiction between the Superior Court of Justice and any courts, between Superior Courts, or between these and any other court (article 102, I, “o” of the CF ). In the conflict between Superior Courts, or between these and any Courts, the competence rests with the STF. They are Superior Courts, in addition to the STF itself, the Superior Court of Justice, Superior Military Court, Superior Electoral Court and Superior Labor Court.

Jurisdiction of the STJ:  It is incumbent upon the Superior Court of Justice to process and judge, originally, conflicts of jurisdiction between any courts, except for the provisions of article 102, I, “o”, as well as between the Court and judges not bound by it and between judges linked to different courts ( article 105, I, “d” of the CF ). Thus, if there is a conflict between the Court of Justice of SC and the TRF of the 4th Region, or between a judge of the State of RS and the Court of Justice of Paraná, or between a Federal Judge and a State Judge, or between a judge of the State of SP and a judge of the of RJ, the competence to process and judge the conflict belongs to the STJ.

Conflict and Federal Justice

Jurisdiction of the Federal Regional Courts:  It is incumbent upon the Federal Regional Courts to process and judge, originally, conflicts of jurisdiction between Federal Judges linked to the Court ( article 108, I, “e” of the CF ).

Conflict of competence between special federal court and federal court:  “It is incumbent upon the Federal Regional Court to decide conflicts of competence between special federal court and federal court of the same judicial section” –  Precedent 428 of the STJ . Renato Brasileiro, in comments to Article 113 of the CPP, realizes that the expression “judicial section”, contained in this Precedent, is inappropriate. Federal Justice is divided into Regions. Each Court corresponds to a Region. The States of each Region are the judicial sections. Renato suggests the following correction to Precedent 428: “It is incumbent upon the respective Federal Regional Court to decide conflicts of jurisdiction between the special federal court and the federal court, when both are within the area of ​​its jurisdiction” (Lima, Renato Brasileiro. Code of Criminal Procedure Commented . 2nd. Ed. Publisher Juspodivm: 2017). Your position is perfect. The expression “when both are within their  region ” could also be used.

Conflict of jurisdiction between Federal Judge and State Judge:  “It is incumbent upon the regional federal court to resolve a conflict of jurisdiction verified, in the respective region, between a Federal Judge and a State Judge invested with federal jurisdiction” –  Precedent 3 of the STJ . 

Conflict and STM and TSE

Competence of the Superior Military Court:  It is incumbent upon the Superior Military Court to originally process and judge conflicts of competence between Councils of Justice, between Judges-Auditors, or between these and those, as well as those of attribution between administrative and military judicial authorities (article 6 , item II, letter “g”, of law n. 8.457/92 ).

Jurisdiction of the Superior Electoral Court:  It is incumbent upon the Superior Electoral Court to originally process and judge conflicts of jurisdiction between Regional Electoral Courts and electoral judges from different States ( article 22, item I, letter “b” of the Electoral Code ).

Competence of the Regional Electoral Courts:  It is incumbent upon the Regional Electoral Courts: to originally process and judge conflicts of jurisdiction between electoral judges of the respective State ( article 29, item I, letter “b” of the Electoral Code ).

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