Art. 76. Jurisdiction will be determined by the connection:
I – if, with two or more infractions occurring, they have been committed at the same time by several people together, or by several people in competition, although the time and place differ, or by several people against each other;
II – if, in the same case, some were committed to facilitate or conceal the others, or to achieve impunity or advantage in relation to any of them;
III – when the proof of an infraction or any of its elementary circumstances influences the proof of another infraction.
The connection hypotheses
Connection meaning: When the offenses are interconnected, jurisdiction is determined by the connection, which is to say that it implies the unity of the process and the judgment. Connection is connection, bonding, bond, dependence, affinity, nexus, relationship. With insight, Guilherme Nucci realizes that item III of article 76 says it all, the others being dispensable: “Although the doctrine is practically unanimous in supporting the causes of determination of competence by connection, seeking to substantiate them in the best possible way, we want to believe that the only, solid and viable reason for joining facts in a single process, in order to obtain a unitary assessment, is a more efficient production of evidence. Thus, of the five hypotheses suggested in art. 76, we understand that only one of them should truly remain, which is provided for in item III. (…) Once again, if only item III of art. 76, would be enough to determine the investigation of car theft and illicit purchase of weapons along with the theft to facilitate the production of evidence of criminal offenses – and if necessary. In short: it seems to us that item III would be able to solve all connection problems, with no substantial reason for the prediction made in the previous items” (Nucci, Guilherme de Souza. Code of Criminal Procedure Commented . 13th. Ed. National Editorial Group: 2014). We completely agree with Nucci’s considerations. The laws, including the CPP, have too many provisions. Half of them could be erased. It would facilitate – and a lot – the study and interpretation of the law. Next, we will see the somewhat pretentious names created for the various types of connection contained in items I and II. All useless, because, as said, item III, pragmatic and objective, summarizes everything in a simple and clear way: there is a connection when the evidence of a crime influences that of another. It doesn’t need more than that.
Connection, continence and unity of the process: The unity of the process and the judgment of related and continent crimes is based primarily on the fact that the evidence of these crimes is interconnected. Proof of one offense influences the proof of the other(s). The second foundation is to avoid contradictory sentences. For example, a gang in Rio Grande do Sul plans a bank robbery and starts preparations. Mário, in the city of Torres, forges identity cards and licenses for employees of a security company. João, in the city of Esteio, steals two 38 caliber revolvers from inside a house. Luís, in Novo Hamburgo, steals a car. Mário, who in addition to being a counterfeiter is also a hacker, from his computer in Esteio, contacts the bank manager at 8 am on the day of the robbery and, using secret passwords and communication codes, informs him that the two security guards who normally guard the branch will not be there and that two others, the which ones will identify, will replace them. Around that same time, Carlos and Juvenal, after kidnapping the two security guards, arrested them both in the basement of a house in Porto Alegre. At 9:30 am, Carlos and Juvenal present themselves to management with the forged documentation. At 10:30 am, pulling out the weapons stolen by João in Esteio, they rob the cashiers and flee with the car stolen by Luís in Novo Hamburgo. They are arrested days later in Rio de Janeiro. In this example, there is salute (article 77, item I). The competent jurisdiction is that of Porto Alegre, since, in the competition of jurisdictions of the same category,the , item I of the CP), there was the practice of false imprisonment (article 148 of the CP) and use of a false document (article 304 of the CP). All other crimes must be prosecuted and judged in Porto Alegre.
Item I: The connection always presupposes more than one infraction. At least two. There may be a connection with only one agent, but not with only one crime. Specifically with regard to item I, there is the participation of more than one person. In this item, there are two or more offenses that are committed at the same time, or by several people together or in competition. In competition means that there is a subjective bond uniting people, although crimes are committed in different places and times. This item I also provides for the possibility of crimes committed by several people, against each other, which may or may not be at different times and places.
Item II: This begins with the expression “in the same case”, referring to the number of offenses (more than one) and not to the number of persons. Therefore, the connection referred to in item II can be verified if there is only one agent, but provided there are at least two crimes. Here the later crime is committed with the aim of facilitating, concealing, obtaining impunity or taking advantage of the former.
Doctrinal classification: Items I, II and III contain six types of connections: (1) intersubjective by simultaneity, (2) intersubjective by concurrence, (3) intersubjective by reciprocity, (4) objective teleological connection, (5) objective consequential connection and (6) evidentiary connection. The (1) intersubjective by simultaneity ( if, when two or more infractions occur, they have been committed, at the same time, by several people together ) is so called because it involves more than one agent, and the crimes occur at the same time. In (2) intersubjective by competition ( or by several people in competition, although different times and places), the term “intersubjective” derives from the participation of several people, and the expression “contest” is justified because there is a subjective bond uniting people, although the crimes are committed in different places and times. In (3) intersubjective by reciprocity ( or by several people, one against the other ), reciprocity means that offenses are reciprocal, that is, participants are at the same time perpetrators and victims of crimes. In the (4) objective teleological connection ( if, in the same case, some were committed to facilitate or conceal the others ), unlike the subjective one, there are not several agents, and it is teleological because the crimes are related by a purpose . The (5) objective consequential connection (or to gain impunity or advantage over any of them ) is intended to affect the consequences of another offence. The (6) probative connection ( when the proof of an infraction or of any of its elementary circumstances influences the proof of another infraction ) aims to avoid the fragmented and incomplete collection of the evidence, to the detriment of the principle of real truth.
Doctrine
Gustavo Badaró: The connection in criminal proceedings, according to the natural judge principle, and its application in Operation Lava Jato processes . Badaro Lawyers.
Jurisprudence – Denunciation. prevention and connection
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
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).
The change in jurisdiction does not invalidate the decision on telephone interception determined by the court initially competent to process the case. Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in REsp 1492472/PR, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 10/04/2018, DJE 10/15/2018
HC 349583/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/15/2016, DJE 09/26/2016
RHC 57573/RS, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 08/18/2016, DJE 08/29/2016
RHC 28062/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 08/02/2016, DJE 08/19/2016
APn 675/GO, Rel. Minister Nancy Andrighi, SPECIAL COURT, judged on 11/18/2015, DJE 02/02/2016
HC 261664/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 09/15/2015, DJE 09/30/2015
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).
