Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 74º CPP – Due to the nature of the infraction.

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Art. 74. The competence due to the nature of the infraction will be regulated by the  laws of judicial organization, except for the exclusive competence of the Jury Court.
§ 1 It  is incumbent upon the Jury Court to judge the crimes provided for in  articles 121, §§ 1 and  2 ,  122, sole paragraph ,  123 ,  124 ,  125 ,  126  and  127 of the Penal Code , whether completed or attempted. (Wording provided by Law No. 263  , of 2/23/1948.)
§ 2 If, after starting the process before a judge, there is disqualification for violating the jurisdiction of another, the process will be referred to that judge, unless the jurisdiction of the first judge is higher, which, in such case, will have its jurisdiction extended.
§ 3 If  the pronunciation judge downgrades the infraction to another attributed to the competence of a single judge, the provisions of article 410 shall be observed; however, if the disqualification is carried out by the Jury’s own Court, its president will be responsible for pronouncing the sentence (Article 492, § 2 ) .

Judicial organization laws

Judicial organization laws and jurisdiction based on the nature of the offence:  By this provision, the laws on judicial organization are authorized to establish rules of jurisdiction taking into account the nature of the offence, that is, the type of offense, the subject of the offence. These norms can create specialized courts for the prosecution and judgment of certain crimes, for example, domestic violence, traffic crimes, crimes against the financial system, criminal organization, drugs, financial crimes, crimes against minors, crimes of corruption and money laundering. .

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 . Thus, giving an example, the creation of a court specialized in drugs in the district of the state capital does not subtract the competence of the other districts to prosecute and judge these crimes when they occur in their jurisdictions.


Validity of the telephone interception decreed by the Court of the Central Court of Inquiries:  The telephone interception decreed by the Court of the Central Court of Criminal Investigations is valid, even if it does not become competent to assess future criminal proceedings ( HC 126.536, rel. min. Teori Zavascki , judgment on 3/1/2016, DJE of 3/28/2016  – Bulletin 816, Second Panel).

Private Jury Jurisdiction

Reservation to the exclusive competence of the Jury Court:  The laws of judicial organization may regulate the competence due to the nature of the infraction, however, the exclusive competence of the Jury Court is reserved for the judgment of intentional crimes against life, consummated or attempted, stipulated in  articles 121 , §§ 1 and  2 , 122, sole paragraph, 123, 124, 125, 126 and 127 of the Penal Code (intentional homicide, inducement, instigation or assistance by a third party to suicide, infanticide, abortion provoked by the pregnant woman or with her consent, abortion provoked by a third party without the consent of the pregnant woman, abortion provoked with the consent of the pregnant woman).

Puerperal status in the dock:  There are occasions when the criminal legislator reveals an unlimited obscurantism. The puerperal state is the one that occurs when the child is being born, when the mother undergoes intense psychological changes. There is a drastic drop in hormone levels, chemical changes in the brain that often subtract the parturient’s reason, totally or partially. If the mother under these conditions takes the life of her child, is that a fact to be judged by lay judges? More: is it a fact to be submitted to the maximum publicity of the popular judgment of the Jury’s Court? It is a topic that needs to be reviewed by the legislator.

Abortion with the consent of the pregnant woman judged by the people:  No woman is proud of having an abortion. On the contrary, most women who go through this traumatic experience feel guilty and suffer for it. They are judged by themselves. Submitting them to a new trial is a perversity and even more so if it is done in a public, vexatious and humiliating way. Figures from the Ministry of Health show that hospitalizations due to complications due to termination of pregnancy reached 123,312 in 2016 ( Estadão, December 17, 2016). Mostly poor women die, who are unable to resort to private abortion clinics and who cannot rely on the Unified Health System to carry out the intervention. They die because they cannot be treated decently. They die because it is a crime to abort. A public health problem is handled by public safety. Yet another legislative oversight. It is the police officer who comes to the aid of the legislator, as the person who exercises this profession usually has a wide and rich life experience. The policeman knows where not to look.

Federal Jury Court:  The Federal Court also has a Jury Court. Decree  -Law No. 253  , of February 28, 1967, in its Article 4, that in crimes within the jurisdiction of Federal Justice to be judged by the Jury Court, the provisions of procedural legislation will be obeyed, with the presidency of the judge responsible for processing the respective criminal action. In judicial sections where there is more than one competent court in criminal matters, the list of jurors will be organized annually by one of the judges by rotation, observing numerical order. The Federal Jury Court will have jurisdiction in the case, for example, of an intentional crime against life committed by a federal public servant or against him, always in the exercise of his function. Example one: a federal police officer kills a fugitive in pursuit. Example two: public servant in charge of administrative inquiry is killed because of the investigations he carried out.

Still on the Jury Court:  See the subheadings Minimum competence and related crimes , Jury Court competence when the victim is a civilian and the accused is a state soldier , Competence for the trial of robbery , The Jury Court and the jurisdiction by prerogative of function , all under the title  Jury Court , in comments to article 69 of the CPP.

Jury Court and related offenses:  See the title  Jury Court and connection or salute  in comments to Article 78.

Disqualification by pronunciation and by the judges

Disqualification due to pronunciation, measures and related crimes:  With the sentence of indictment, the accused is sent to trial by the popular jury. This sentence represents an acceptance of the viability or reasonableness of the accusatory thesis, no more than that. Finalizes the first phase of the jury procedure (instructional phase) and starts the second (prior to trial). In this decision, the magistrate can disqualify the imputed infraction, that is, decide that it is not a crime against life, and, therefore, the jurisdiction for the trial is shifted from the Jury Court to the single judge. Pursuant to  article 419 of the CPP, this means that the judge is convinced of the existence of a crime other than those referred to in § 1 of art. 74 (intentional crimes against life) and, not being competent for the trial, sends the records to the judge who is, together with the records of related crimes (if any). It should be noted that the reference made to Article 410 in paragraph 3 of  this Article 74 is out of date and should be understood as referring to  Article 419 of the CPP .

Disqualification by the Jury Court, measures and related crimes:  If the jurors, in a secret ballot, disqualify the criminal offense (they understand that there is no intentional crime against life), the president of the court, contrary to what happens when the disqualification takes place in the pronunciation phase, he is authorized to pronounce sentence. If there are related crimes, the president must also judge them ( article 492, paragraph 2 ) . But, it should be noted, this is when the disqualification is carried out by the judges. If the jurors, instead of disqualifying the intentional crime against life, launch an acquittal in relation to that crime, they must proceed with judging the related crimes (article 78 of the CPP).


Ludmila Antunes Resende: Summary acquittal in the first phase of the jury . Legal Scope. The judge will only disqualify the criminal offense, whose complaint was received as an intentional crime against life, if the certainty is crystal clear as to the occurrence of a crime other than those provided for in art. 74, § 1, of the CPP. It is noted that, even if the summary magistrate decides to pronounce the defendant, taking him to plenary for judgment by the sentencing council, there is still the possibility of disqualification. This happens when the jurors, in plenary, through votes, understand that the crime under analysis is not intentional against life, thus attesting the incompetence of the Jury Court for judgment.  

most senior jurisdiction

More graduated jurisdiction and perpetuation of jurisdiction:  On the subject, Renato Brasileiro Lima, in comments to the present provision, rightly states: “Art. 74, §2°, of the CPP, authorizes, at least in theory, the perpetuation of the jurisdiction of the most senior jurisdiction. It so happens that, in the current legal system, there is no possibility of establishing the competence of the highest jurisdiction, taking into account the nature of the criminal offense. As Demercian and Maluly note ( Course on Criminal Procedure, op. cit. P. 191-192), ‘the extension of jurisdiction is not applicable in Brazil when it is fixed due to the matter. In fact, our Judicial Organization Laws do not determine the jurisdiction on the grounds of the matter between judges of different degrees of jurisdiction, that is, there is no law that says, for example, that the State Court of Justice is originally responsible for the judgment of crimes against public faith, property, administration, etc. The original competence of higher ranking judges is always given by reason of the person, or by prerogative of function”(Lima, Renato Brasileiro. Code of Criminal Procedure Commented. 2nd. Ed. Editora  Juspodivm : 2017).


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