Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 116º CPP – The procedure to resolve the conflict.

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Art. 116. The judges and courts, in the form of a representation, and the  interested party, in the form of a request, will give a written and detailed part of the conflict, before the competent court, setting out the grounds and attaching supporting documents.
§ 1 When  the conflict is negative, the judges and courts may raise it in the case file.
§ 2 Once the deed has been distributed, if the conflict is positive, the rapporteur may immediately determine that the progress of the process be suspended.
§ 3 Whether or not the suspension order has been issued, the rapporteur will request information from the authorities in conflict, sending them a copy of the request or representation.
§ 4 The information will be provided within the period set by the rapporteur.
§ 5 Once the information has been received, and after hearing the attorney general, the conflict will be decided in the first session, unless the instruction of the fact depends on diligence.
§ 6 Once the decision has been handed down, the necessary copies will be sent, for its execution, to the authorities against which the conflict has been raised or which have raised it.

start of conflict

Conflict by representation or request:  Judges, judges and ministers initiate the conflict by representation to the competent court. The parties do so upon request. Both the representation and the application must be written and must describe the conflict, stating the grounds and attaching supporting documents. Representation is only appropriate in the event of positive conflict. If the conflict is negative, it occurs in the records themselves.

Negative conflict:  If, examining the case file, the judge considers himself incompetent, he issues a reasoned decision, in which he explains the reasons for his conviction and, then, sends the case to the colleague he considers to be competent. This, in turn, if it is also of the understanding that it is not competent, raises the negative conflict of competence.

Suspension of the process, information and conflict resolution

Suspension of the process:  In the case of a negative conflict, there is no need to consider suspending the process, since the process is naturally suspended. If the conflict is positive, as a general rule, the process is not suspended. It proceeds in progress with the judge who has possession of it. However, the rapporteur may immediately determine that the progress of the process be suspended, especially if, at first sight, he understands that there are good grounds to indicate the incompetence of the judge where the process is being processed.

Provision of information:  In the case of a negative conflict of jurisdiction, information may be waived, as it is already in the case file. If the conflict is raised by the Public Prosecutor’s Office or the defense, information must be requested from the magistrates involved. If the positive conflict is raised by one judge, information must be requested from the other.

Conflict resolution and a third judge:  The conflict of jurisdiction may involve two, three, four judges or more. The solution to the conflict may rest on the indication of the competence of a judge who has not participated in the conflict.


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