Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 82º CPP – Summoning related processes.

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Art. 82. If, despite the connection or continence,  different proceedings are instituted, the prevailing jurisdictional authority must revoke the proceedings that are pending before the other judges, unless they already have a final sentence. In this case, the unity of the processes will only be given, subsequently, for the purpose of summing up or unifying the penalties.

Calling related processes

Prevailing and avocatory jurisdiction:  If different cases are instituted, notwithstanding the connection or salute, the prevailing jurisdictional authority shall avocate the cases that are pending before the other judges. Authority with prevailing jurisdiction is one that exerts attractive force. It is the prevailing competence according to the rules of connection and salute. To avocate is to call to oneself, to attribute oneself, to arrogate, to summon. It is by means of avocatory, document, letter, order, requisition that the magistrate summons to his judgment a case that is being processed in another.

Proceedings terminated and avocatory prohibition:  The judge may not avoke the related or continent proceedings if there is already a final judgment. Final judgment does not necessarily mean final judgment. “Definitive” here has the meaning of defined, concluded, decided, finalized, that is, that put an end to the process in the 1st instance  . On the subject,  STJ Precedent 235 says : “The connection does not determine the meeting of processes, if one of them has already been judged”.

Conflict of jurisdiction:  If the magistrate to whom the avocatory has been addressed understands that it is not the case to accept it, as he considers himself competent to prosecute and judge, there will be a conflict of jurisdiction. The wording of article 114, item II, clarifies:  There will be conflict of jurisdiction: (…) II – when there is a dispute between them about the unity of judgment, joining or separation of proceedings.  This situation must be resolved in the manner recommended by  Articles 115 of the CPP  et seq.

Unity of processes only in the execution phase of the sentence:  When, due to different circumstances, related or continental crimes are prosecuted, judged and sentenced separately, the unity of processes will only take place in the execution phase, or for the purpose of summing up (article 69 of the CP ) , or for the purpose of unifying the sentence ( Articles 70 and 71 of the CP ). Article  66, item III of Law No. 7,210  /1984 , determines that it is up to the execution judge to decide on the sum or unification of penalties. It will be up to the judge of executions to determine whether there was a concurrence between the related or continental crimes and, if so, whether it was material concurrence, formal concurrence or continued crime, respectively articles  69, 70 and 71 of the Penal Code. Roughly speaking (there are specificities that increase the penalty even more), the material concurrence (more than one action and with more than one crime) results in the sum of the penalties for the crimes. In the formal concurrence (a single action that results in more than one crime), the penalty for only one of the crimes is applied, increased from 1/6 to half. In continuous crimes (more than one action and more than one crime), the penalty for only one of the crimes is applied, increased from 1/6 to 2/3.

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