Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 70º CPP – Jurisdiction for the place of the infraction.

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Art. 70. Jurisdiction will, as a rule, be determined by the place where  the offense was committed, or, in the case of an attempt, by the place where the last act of execution was performed.
§ 1 If  , once the execution has started in the national territory, the infraction is consummated outside it, the competence will be determined by the place where the last act of execution was carried out in Brazil.
§ 2 When  the last act of execution is carried out outside the national territory, the judge of the place where the crime, even partially, has produced or should have produced its result will be competent.
§ 3 When 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, jurisdiction will be based on prevention.
§ 4 In the crimes provided for in  art. 171 of Decree-Law No. 2,848, of December 7, 1940  (Criminal Code), when practiced through deposit, through issuance of checks without sufficient provision of funds in the drawee’s possession or with frustrated payment or through transfer of values, the competence will be defined by the location of the victim’s domicile, and, in case of multiple victims, jurisdiction will be based on prevention ( Included by Law No. 14,155, of 2021)

Jurisdiction for the place of infringement

Jurisdiction for the place where the offense was committed:  The general rule of jurisdiction is that it belongs to the place where the result of the crime is verified. This rule was not chosen at random. It has two good fundamentals. Where the infringement takes place is where the signs and evidence are located and where it is easier, due to proximity, to reach them. The second ground is that the jurisdictional response to the crime must be given before the same community where it occurred, thus demonstrating the effectiveness of criminal jurisdiction.

Comarcas and subsections:  The territory of the State Justice is divided into comarcas – territorial limits of competence that cover one or more municipalities. One or more state judges work in the counties. In Federal Justice, each state, as well as the Federal District, constitutes a Judiciary Section and its seat is the respective capital. The sections of the Federal Court are divided into subsections. There are five regions of Federal Justice. There is a Federal Regional Court in each. Each region covers in its area of ​​competence certain states of the federation.

Relative jurisdiction and relative nullity:  Jurisdiction for the place of the offense is relative. The objection of incompetence must be lodged within the period of the preliminary defense ( article 396 – A, paragraph 1 ) . There will be no declarable nullity due to incompetence due to the location of the infraction if there is no damage, even if there is a timely argument. There are occasions when it is in the interest of justice that the rule of jurisdiction for the place of the result is not obeyed, which happens when, for example, the entire crime has been prepared and executed in the neighboring district (all the evidence is there) and only the result occurred in the so-called district of the place of the offence. See title subtitle  Relative competence  in titleAbsolute jurisdiction, relative jurisdiction and extension of jurisdiction in annotations to Article 69. Two are the foundations of the rule of the place of the infraction. The first concerns criminal policy. The second is that the proximity of the evidence facilitates the search for the real truth. If for any reason the location of the result is not the most convenient for collecting the evidence, but rather the location of the action or omission, there is no declarable nullity in opting for this, as there is no prejudice to any of the parties, since the access to evidence is not being curtailed, on the contrary, it is facilitated.

Place of infraction:  The  caput  of article 70 establishes that jurisdiction will be determined by the place where  the infraction was committed.  With regard to the place of the crime, there are three theses: that of activity (the place of the crime is that of action or omission); the result (place of the crime is where it was committed); of ubiquity (the place of the crime is as much that of the action or omission as that of the result). The CPP in article 70 adopted the thesis of the result to define the place of the infraction.

Jurisprudence

Modification of competence to adopt the best place for the formation of the real truth : (…) in exceptional situations, the jurisprudence of this court has admitted the establishment of competence for the trial of the crime in the place where the action took place, in the name of facilitating the collection of evidence and for the instruction of the process, taking into account the principles that serve the greater purpose of the process, which is the search for the real truth. (…) Competence is determined by the place where the infraction was committed (art. 70 of the CPP), being possible its modification in the hypothesis that another place is the best for the formation of the real truth ( CC 131566/DF, rel Justice Reynaldo Soares da Fonseca, Third Section, judged on 09/23/2015, DJE 09/29/2015 ).

Jurisdiction to prosecute and judge embezzlement committed through fraud for the granting of retirement : In the case of criminal action aimed at the investigation of embezzlement practiced through fraud for the granting of retirement, the court of the place where the agency where the benefit was initially received is located , although this later started to be received at an agency located in a municipality subject to different jurisdiction ( CC 125.023-DF, 331 Reporting Justice Marco Aurélio Bellizze, judged on 3/13/2013 – Newsletter nº 0518 ). 

Jurisdiction to prosecute and judge the crime of embezzlement-embezzlement:  It is incumbent upon the court of the place where the diversion of public funds effectively occurs – and not the place where the amounts were intended – to process and judge the criminal action related to the crime of embezzlement. embezzlement-diversion (Article 312, “caput”, second part, of the CP) ( CC 119.819-DF, Reporting Justice Marco Aurélio Bellizze, judged on 8/14/2013 – Newsletter nº 0526 ).

 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).

Jurisdiction is determined by the place where the infraction was committed (article 70 of the CPP), being possible its modification in the event that another place is the best for the formation of the real truth. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

CC 131566/DF, Rel. Minister Reynaldo Soares da Fonseca, Third Section, judged on 09/23/2015, DJE 09/29/2015

RHC 053020/RS, Rel. Minister Newton Trisotto (Judge summoned from the TJ/SC), Fifth Panel, judged on 05/07/2015, DJE 06/16/2015

CC 138537/SP, Rel. Minister Felix Fischer, Third Section, judged on 03/11/2015, DJE 03/18/2015

HC 095853/RJ, Rel. Minister Og Fernandes, judged on 09/11/2012, DJE 10/04/2012

HC 196458/SP, Rel. Justice Sebastião Reis Júnior, judged on 12/06/2011, DJE 02/08/2012

CC 034557/PE, Rel. Minister Hamilton Carvalhido, Third Section, judged on 06/26/2002, DJ 02/10/2003

Precedent 546 of the STJ :  The competence to prosecute and judge the crime of using a false document is signed by reason of the entity or body to which the public document was presented, regardless of the qualification of the issuing body (Third Section, approved on10/14 /2015, DJe 10/19/2015). 

Fraud and competent court to prosecute the criminal prosecution:  It is up to the court of the court where the bank agency is located through which the alleged fraudster received the proceeds of the crime – and not to the court of the court where the branch in which the fraud is located is located. victim has a bank account – prosecute the criminal prosecution instituted to investigate the crime of embezzlement in which the victim would have been induced to deposit a certain amount in the personal account of the perpetrator of the crime ( STJ , CC 139.800-MG, Reporting Min. Reynaldo Soares da Fonseca, judged on 6/24/2015, DJe 7/1/2015 – Newsletter 565 ).

Ratification of evidence collected by the incompetent judge in the competent court:  Evidence collected or authorized by an apparently competent court at the time of authorization or production can be ratified, even if its incompetence is later recognized ( Inq 4.506 and Inq 4.506 AgR-Sec., rel. for Roberto Barroso clock and Marco Aurélio clock, respectively ).

Issuance of checks without sufficient provision of funds: In crimes of larceny, when committed through deposit, by issuing checks without sufficient provision of funds in the drawee’s possession or with the payment frustrated or through the transfer of values, the competence will be defined by the location of the victim’s domicile, due to the supervenience of Law n. 14,155/2021, even though the facts were prior to the new law ( CC 180,832-RJ , Reporting Min. Laurita Vaz, Third Section, unanimously, judged on 08/25/2021.).

competence and attempt

Jurisdiction in the event of an attempt:  Jurisdiction for the place of the infraction, in the case of an attempt, is signed by where  the last act of execution was performed  (article 70,  caput ). The Latin expression  iter criminis  means the  path of crime . There are four stages of the crime: cogitation, preparatory acts, execution and consummation.  The cogitation phase  is mental, intellectual, cognitive. It is when the delinquent mentally prepares the crime project. It’s atypical. It cannot be punished. In the stage of  preparatory acts,  there is already external behavior, acts and actions. These acts are also not punishable, except for some criminal types ( article 291 of CP – equipment for counterfeiting currency, for example). Execution acts  are those that occur when the agent enters with his behavior in the criminal type. Consummation  occurs when the agent performs all elements of the criminal type. Leaving the stage of preparatory acts and entering the stage of execution, it is already the ground of the attempt, and the last act performed in this stage will establish the competence.

Jurisdiction and special courts

Place of offense in the law of special courts: Article 63 of Law No. 9099/95  prescribes  that   the  competence  of the court will be determined by the place where the criminal offense was committed . The expression “in which the criminal offense was committed” has a broad meaning. It may concern both the phase of the criminal activity and the phase of the result. Therefore, the thesis adopted by the law of special courts to determine the place of the infraction is that of ubiquity, that is, both the place of the action and the place of the result are competent.

distance crime

Crime at a distance:  Paragraphs 1 and  2 of article  70 deal with crime at a distance. With regard to this type of crime,  article 6  of the CP states :  The crime is considered committed in the place where the action or omission occurred, in whole or in part, as well as where the result was produced or should have been produced . Paragraph 1 of  Article 70 is easy to understand. Already the 2nd it is practically unintelligible, which explains why there are so many misinterpretations. In comments to article 70 of the CPP, Renato Marcão has the merit of explaining in an extremely simple, didactic and correct way the meanings of both paragraphs (it is worth mentioning that one of the great qualities of this writer is to expose complex themes of criminal procedural law in a simple and synthetic, facilitating access to knowledge not only for students but also for experienced professionals). To clarify paragraph 1 the, he uses the following example: a man sends a letter bomb from São José do Rio Preto to his mother-in-law in Belgium, where the mail explodes when opened, killing the poor lady. Competent will be the district of São José do Rio Preto, where the last act of execution in Brazil was practiced – the posting of the letter. To clarify the meaning of paragraph 2 , the example is the opposite: the mother-in-law sends the explosive missive from Belgium to the son-in-law in São José do Rio Preto. As the last act of execution was carried out outside national territory, the judge of the place where the crime, even if partially, produced or should produce results will be competent: the Judicial District of São José do Rio Preto (Marcão, Renato. Code of  Procedure Penal Commented.  Editora Saraiva: 2015).

Jurisprudence

In the event that the fraud takes place through undue advantage, earned through the deposit in favor of a third party’s bank account, jurisdiction must be declared in favor of the court in which the favored account is located ( CC 169.053-DF , Rapporteur Min . Sebastião Reis Júnior, Third Section, unanimously, judged on 12/11/2019, DJe 12/19/2019).

Uncertainty, territorial boundaries and boundaries of jurisdictions

Uncertainty, territorial boundaries and boundaries of jurisdictions:  If the territorial boundary between two or more jurisdictions is uncertain, or when the jurisdiction is uncertain because the offense was committed or attempted on the boundaries of two or more jurisdictions, jurisdiction is resolved by prevention. The solution through prevention is verified when, with two or more equally competent judges concurring, one of them has preceded the others in the practice of some act of the process or of a measure related to it, even if prior to the offering of the complaint or complaint (article 83 of the CPP ).

Murder as an exception to the rule of action

Prosecution and trial of homicide at the place of action: Deviating from the rule adopted by the CPP – the competent court is that of the place of the result –, doctrine and jurisprudence peacefully accept that, in homicide, the competent court may in some cases be that of the place where the action was carried out. There are reasons for this. The victim is shot in the city of São Leopoldo. Placed in an ambulance, she is rushed to the nearest hospital in a position to provide care. She is admitted to a hospital in the city of Novo Hamburgo, where she dies. In compliance with the dictates of procedural law, the agent must be prosecuted and judged in Novo Hamburgo, far from the evidence and the community where the fact occurred. In this way, for reasons of criminal policy and because there is no prejudice to the parties, the validity of the jurisdiction of the place of conduct and not of the result is admitted.

Precedents relating to jurisdiction for the place of the offense

Bad check:  “The competent court for the prosecution and trial of crimes of larceny, in the form of fraudulently issuing a check without funds, is the place where payment was refused by the drawee” –  Precedent No. 521 of the STF . See  Jurisprudence subsequent to the statement . “It is incumbent upon the court of the place of refusal to prosecute and judge the crime of embezzlement by means of a check without funds” –  Precedent No. 244  of the STJ .

Fraud by means of check forgery:  “It is incumbent upon the court of the place where the illicit advantage was obtained to prosecute and judge the crime of larceny committed through check forgery” – Precedent No. 48  of the STJ.

Smuggling or embezzlement:  “The jurisdiction to prosecute and judge for the crime of smuggling or embezzlement is defined by the prevention of the Federal Court of the place of seizure of the goods” –  Precedent No. 151  of the STJ .

False passport:  “The competent Federal Court to prosecute and judge the accused of the crime of using a false passport is that of the place where the crime was committed” –  Precedent No. 200  of the STJ .

Private court created by state law does not change the procedural law:  “The existence of a private court, instituted by state law, does not change the territorial jurisdiction resulting from the procedural laws” –  Precedent No. 206  of the STJ .

Crime of using a false document:  The authority to prosecute and judge the crime of using a false document is established on the grounds of the entity or body to which the public document was presented, regardless of the qualification of the issuing body. Third Section, approved on 10/14/2015, DJe 10/19/2015 –   Precedent 546 of the STJ .

Fim

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