Art. 114. There will be conflict of jurisdiction:
I – when two or more judicial authorities consider themselves competent, or incompetent, to hear the same criminal act;
II – when there is a dispute between them about the unity of judgment, the joining or separation of proceedings.
assignment conflict
Assignment conflict: The conflict of attributions ensues when two or more administrative or judicial authorities clash as to which one has the power to perform a certain act of a non-jurisdictional nature. Conflict of attributions may involve: (1) judicial and administrative authority; (2) administrative authorities; (3) judicial authorities. The conflict between judge and administrator can only be decided by the Judiciary. The conflict between administrators may or may not be brought to the attention of the Judiciary for a solution, which depends on the initiative of the parties. The conflict of attributions between judges is resolved by the laws of judicial organizations and internal regulations. What distinguishes the conflict of competence from that of attributions is that, in the conflict of competence, judges only participate, and what is at stake is the jurisdictional power,
Competence of the STJ to judge conflicts of attributions: It is incumbent upon the Superior Court of Justice to prosecute and judge, originally conflicts of attributions: (1) between administrative and judicial authorities of the Union; (2) between judicial authorities of one State and administrative authorities of another or of the Federal District, or between the latter and the Union (art . 105, I, “g” of the CF ).
Conflict of attributions between members of the State MP: Law n. 8.625/1993, in its article 10, item X , provides that it is incumbent upon the Attorney General of Justice to resolve conflicts of attributions between members of the Public Ministry, designating who should officiate in the deed.
Prosecutors from different States among themselves or with the Public Prosecutor: There may be conflict of attributions between Public Prosecutors from different States. There may also be conflict between the Public Prosecutor and the Public Prosecutor. The Attorney General of the Republic does not have powers to decide, since he is not a representative of the State Public Ministry, nor does he have hierarchical power over the members of that institution. The jurisdiction to judge the conflict belongs to the STF, and by analogous application of article 102, item I, letter “f” of the CF , according to which it is incumbent upon the STF to process and judge the causes and conflicts between the Union and the States, the Union and the Federal District, or between one and the other, including the respective indirect administration entities.
Jurisprudence
Conflict of attributions between MPE and MPF : The Supreme Court is responsible for resolving conflict of attributions involving the Federal Public Ministry and the State Public Ministry ( Minister Marco Aurélio – STF – Pet 3528 ).
Conflicts of attributions between members of the Federal Public Ministry: It is incumbent upon the Attorney General of the Republic (PGR), as a national body of the Public Ministry, to settle conflicts of attributions between members of the Federal Public Ministry (MPF) and the State Public Ministry ( ACO 924, rel. Luiz Fux, judgment on 5/19/2016, DJE of 9/26/2016 – Newsletter 826, Plenary).
There is a conflict of competence, and not of attribution, whenever the judicial authority pronounces on the controversy, expressly accepting the manifestations of the Public Prosecutor’s Office. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).
Judgments:
CAt 000272/SP, Rel. Justice Sebastião Reis Júnior, Third Section, judged on 11/12/2014, DJE 11/19/2014
REsp 1134030/CE, Rel. Minister Gilson Dipp, Fifth Panel, judged on 05/05/2011, DJE 05/27/2011
REsp 1133994/CE, Rel. Minister HONILDO AMARAL DE MELLO CASTRO (Judge summoned from the TJ/AP), Fifth Panel, judged on 09/14/2010, DJE 10/04/2010
CC 110304/DF, Rel. Minister Napoleão Nunes Maia Filho, Third Section, judged on 04/28/2010, DJE 05/21/2010
REsp 1113881/CE, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/23/2010, DJE 05/03/2010
CC 100576/PB, Rel. Minister Og Fernandes, Third Section, judged on 03/25/2009, DJE 04/24/2009
It is incumbent upon the Attorney General of the Republic to assess conflicts of attribution between bodies of the MP: It is up to the Attorney General of the Republic to assess conflicts of attribution between bodies of the Public Ministry ( ACO 1.567 QO rel. min. Dias Toffoli Plenary DJE of 1st- 8-2017 Informative STF 835 ).
Public ministry. The law that determines the referendum by the reviewing body of conclusion regarding the attribution is admitted: The law that determines the referendum, by the competent reviewing body, of the decision of a member of the Public Ministry that concludes, after the initiation of the civil inquiry or of the respective preparatory procedure, whether this or that is assigned to another branch of the Public Ministry ( ADI 5.434, rel. p/ o ac. min. Edson Fachin, DJE of 9-23-2019
Negative and positive conflicts of competence
Negative conflict of jurisdiction: Examining the case, the judge may understand that he is not competent to preside over it, and sends it to the judge he considers competent. This one, receiving the records, concludes differently, he believes that the judge who sent him the records is competent. Negative competency conflict is characterized. The magistrate who received the records must raise it (article 115), representing the court so that the controversy is resolved.
Positive conflict of jurisdiction: The connection and continence matter in unity of process and judgment ( article 79 ). If, despite the connection or continence, different proceedings are instituted, the prevailing jurisdictional authority must recall the proceedings pending before the other judges ( article 82). If the magistrate invokes a case from another district because he understands that there is a connection with the case he is instructing, which he considers to be prevalent, and the requested judge refuses to send it because he also considers that it is his competence, the positive conflict of competence must be raised , which can be done by any of the judges. In conclusion, negative and positive conflicts of jurisdiction can arise when two or more judges consider themselves competent, or incompetent, to hear the same criminal act; when there is a dispute between them about the unity of judgment, the merging or separation of proceedings.
Conflict and final judgment
Conflict of jurisdiction and final judgment: Precedent 59 of the STJ formulates: “There is no conflict of jurisdiction if there is already a final judgment issued by one of the conflicting courts”. A first necessary observation regarding this summary is that it is only valid when the conflict occurs with the criminal action in progress in the 1st instance, as there may be a conflict between execution processes with a final and unappealable sentence. A second restriction that must be made is that there cannot be a conflict of jurisdiction with an ongoing criminal action if there is already a sentence in one of the processes, regardless of whether it has already become final or not. There is no way to meet to jointly proceed with a process in the instructional phase with another already sentenced. By the way, the Article 82 provides that, notwithstanding the connection or continence, if different proceedings are instituted, the prevailing jurisdictional authority may not recall the proceedings that are pending before the other judges if they already have a final sentence. There is no sense in raising the conflict of jurisdiction between proceedings in progress and proceedings with a sentence handed down, since, in any case, they cannot be combined. In this case, the unity of the processes will only be given, subsequently, for the purpose of summing up or unifying the penalties.
