Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 83. Jurisdiction by prevention will be verified whenever,  with two or more equally competent judges concurrent or with cumulative jurisdiction, one of them has preceded the others in the practice of some act of the process or measure related thereto, even if prior to the filing of a denouncement or complaint (articles 70, § 3 , 71, 72, § 2 , and 78, II,  c ).

Competent is the magistrate who anticipates. the prevention

Cases in which the competence is established by prevention:  Prevention has the meaning of precaution, caution, protection, preparation, advance and  anticipation . Competent is the magistrate who  anticipates . Jurisdiction is established by prevention when (1) the territorial boundary between two or more jurisdictions is uncertain, or when the jurisdiction is uncertain because the offense was consummated or attempted on the borders of two or more jurisdictions (article 70, paragraph 3 ) ; (2) it is a continuous or permanent infraction, committed in the territory of two or more jurisdictions ( article 71 ); (3) the place of the offense is not known and the defendant has no certain residence or his whereabouts are unknown ( article 72, paragraph 2o ), (4) competence is not resolved by another ground.

Competition of competent judges and prior decision-making:  Competence is defined by prevention when, with two or more equally competent judges concurrent or with cumulative jurisdiction, one of them has preceded the others in the practice of some act of the process or measure related thereto , even if prior to the filing of the complaint or complaint. There must be the  practice of some act of the process or of measure related to it. It is not enough that he was the first to become aware of the process or investigation, nor that he performed any act. The magistrate must have been the first to perform some act of a decision-making nature. It may relate to breach of banking or tax secrecy, telephone interception, search and seizure, precautionary measure, temporary arrest, arrest in flagrante delicto, preventive arrest, search and seizure, and other measures. It matters little whether there is already a complaint or not.

Judge on duty and sending information to the MP:  The act with decision-making content practiced by the magistrate on duty does not constitute prevention, as there is no prior distribution. Likewise, the sending by the judge of pieces of information to the MP in the form of article 40 of the CPP does not constitute prevention.

Jurisprudence

 The rules for determining jurisdiction must be observed when setting the court to prosecute and judge the crimes reported, including those of connection: collaborator, are not connected with the facts object of the matrix investigation. In this sense, the verification of the facts revealed by the collaborator will depend on the place where they were consummated, their nature and the condition of the incriminated persons, if they hold jurisdiction by prerogative of function ( Inq 4.130 QO, rel. min. Dias Toffoli, judgment on 23 -9-2015, judgment published in the DJE of 3-2-2016  – Bulletin 800, Plenary).

Award-winning collaboration, by itself, does not justify prevention:  Award-winning collaboration, by itself, does not serve as a subsidy to justify the prevention of the feat ( Inq 4.130 QO, rel. min. Dias Toffoli, judgment on 9-23-2015 , decision published in the DJE of 3-2-2016  – Newsletter 800, Plenary).

It is related to the nullity resulting from the non-compliance with the criminal competence for prevention (Precedent n. 706/STF). Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 305387/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/18/2016, DJE 08/24/2016

HC 301757/SP, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 06/07/2016, DJE 06/13/2016

HC 264140/SP, Rel. Minister Rogerio Schietti Cruz, judged on 04/26/2016, DJE 05/02/2016

HC 207983/SP, Rel. Minister Nefi Cordeiro, judged on 10/20/2015, DJE 11/06/2015

HC 261664/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 09/15/2015, DJE 09/30/2015

HC 294628/AM, Rel. Minister Felix Fischer, Fifth Panel, judged on 11/18/2014, DJE 11/27/2014

Award-winning collaboration and connection:  If there is, among the facts reported by the collaborators, at least one in which the presence of a connection with the object of a previously distributed fact is verified, the court that ratifies the award-winning collaboration agreement is competent to process all facts reported ( Pet 7,074  and  Pet 7,074 QO , rel. min. Edson Fachin, DJE of 3-5-2018).

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