Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 115º CPP – Who can raise the conflict.

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Art. 115. The conflict may be raised:
I – by the interested party;
II – by the bodies of the Public Prosecutor’s Office before any of the courts in dispute;
III – by any of the judges or courts in question.

Who can raise the conflict, term and conflict in the investigation

Who can raise the conflict:  The Public Ministry (both when acting as a party and when acting as a law enforcement officer in private actions), the assistant to the prosecution and the accused can raise a conflict of competence. The assistant is not prohibited from raising the conflict even if this option is not included in article 271 of the CPP. The list of acts in  article 271 authorized to the assistant of the prosecution is not exhaustive, since 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. It is in the interest not only of the assistant, but of Justice itself that the case be judged by a competent judge.

Relative incompetence and term to raise the conflict:  In the case of relative incompetence, the conflict must be raised within the period of prior defense. This is because this is the deadline for filing an exception of incompetence ( article 108 ). 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 ten days ( article 396 ). Within this period, the conflict must be raised before the court. In the case of absolute incompetence, the conflict can be raised at any stage of the process.

Conflict of competence during the police investigation:  Conflict of competence may occur during the investigation. To give an example: the judge receives a request for preventive detention from the police authority. It considers itself incompetent to decide and forwards the application to the judge it deems competent. This one, in turn, does not consider himself competent either. He must represent to the court, inaugurating the negative conflict of jurisdiction.


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