Art. 78. In determining competence by connection or salute, the following rules will be observed:
I – in the competition between the competence of the jury and that of another body of common jurisdiction, the competence of the jury will prevail;
II – in the concurrence of jurisdictions of the same category:
a) the place of the infraction to which the most serious penalty is imposed shall prevail;
b) the law of the place where the greatest number of infractions occurred will prevail, if the respective penalties are of equal severity;
c) competence for prevention will be established in other cases;
III – in the contest of jurisdictions of different categories, the highest ranking will prevail;
IV – in the concurrence between common and special jurisdiction, the latter shall prevail.
Place of infraction and highest number of infractions
Attractive force and prevailing jurisdiction: In the concurrence of jurisdictions by connection or continence, the prevailing court (or jurisdiction or jurisdiction) exerts an attractive force over the other.
Place of the infraction where the most serious penalty is imposed: Article 78 aims to determine which jurisdiction is competent in the event of a connection or salute. In the case of jurisdictions of the same category, the one of the place of the infraction to which the most serious penalty is imposed prevails. The reasons that lead this to be the first option of the legislator (place of the crime of the most serious penalty) are related to the proximity of the evidence and with the concern to give effectiveness to justice close to the social environment affected by the crime. From the most serious to the least serious, are the penalties that follow: imprisonment, detention, simple imprisonment, restriction of rights and pecuniary.
Greater number of offenses and prevention: If related or continent crimes are of equal gravity, the jurisdiction of the place where they occurred in greater numbers will prevail. If they have occurred in equal numbers in two or more places, competence for prevention is decided ( article 83 of the CPP ).
Contest of jurisdictions of different categories
Concurrence of jurisdictions of different categories: In this case, the jurisdiction with the highest degree prevails (article 78, item III). The jurisdiction of the court is more graduated than that of 1 st instance. Thus, the jurisdiction by function prerogative prevails, as a general rule, over the jurisdiction of 1 st instance . If a prosecutor is accused of serious bodily injury in co-authorship with another person who does not have jurisdiction by prerogative of function, both will be judged by the Court of Justice. According to Article 96, item III of the CF , the Court of Justice is competent to judge the prosecutor in common crimes and crimes of responsibility.
Forum by prerogative of function does not violate natural judge: “It does not violate the guarantees of the natural judge, full defense and due process of law, the attraction for salute or connection of the defendant’s case to the forum due to prerogative of function of one of the defendants”, says STF Precedent 704 . See Jurisprudence subsequent to the statement . Regarding the jurisdiction by function prerogative, see comments on articles 84 to 87 of the CPP .
Disqualification and acquittal and related or continent offenses
Disqualification of the offense during the course of proceedings and jurisdiction: Regarding the fate of related offenses when the offense that appealed is disqualified during the course of the proceedings, see the heading “ Disqualification of the offense during the course of proceedings and jurisdiction ” in comments to article 69.
Acquittal for the crime that exerted attraction and fate of the related crimes: Regarding the fate of the related crimes when in the course of the process there is acquittal for the crime that exerted attraction, see the subtitle Acquittal for the crime that exerted attraction and fate of the connected ones in the title Competence, nullity absolute, disqualification, related crimes , in comments to article 69.
Connection or continence and relative nullity: Notwithstanding the presence of connection or continence, and if the crimes are not prosecuted and judged jointly, there will be nullity. However, this nullity is relative. It will not be recognized if the absence of impairment is demonstrated.
Recognition or not of connection and appropriate resources
Appropriable appeals against the decision that denies or recognizes connection or continence: There is no specific appeal provided by law against the decision that determines (or denies) the meeting of processes for connection or continence. Thus, the appropriate remedies are habeas corpus , or a writ of mandamus, or partial correction.
Military, Electoral Justice and connection or salute
Military Justice: This does not judge related crimes of any other justice, not even the Common Justice. Article 79 of the CPP expressly makes an exception: The connection and salute will imply unity of process and judgment, except: I – in the concurrence between common and military jurisdiction . In the same sense, the text of article 102, letters “a” and “b”, of the CPPM : The connection and salute will determine the unity of the process, except: a) in the concurrence between military and common jurisdiction; b) in the concurrence between the military jurisdiction and that of the juvenile court . Consequently, in the face of the practice of a military offense connected with a common crime, the military offense is judged by the Military Justice, and the common one by the State Justice.
Electoral Justice: This judges electoral crimes and related common crimes. It does not judge related crimes falling within the jurisdiction of other courts – neither military crimes, nor crimes against life, nor within the jurisdiction of special courts. There is doctrinal and jurisprudential divergence regarding its competence to judge related intentional crimes against life. As the CF expressly provides in article 5 , item XXXVIII , which recognizes the institution of the jury, with the organization that gives it the law, ensuring: (…) the competence for the judgment of intentional crimes against life , we understand that if comes under the absolute competence of the people’s court.
Jurisdiction of the Electoral Justice to judge related common crimes: It is the competence of the Electoral Justice to prosecute and judge electoral crimes and related common crimes (Ac. of 15.5.2014 in RHC nº 33425, rel. Min. Henrique Neves). Once the connection between electoral and common crime has been verified, the competence to prosecute and judge both offenses rests with the Electoral Justice (CF, article 109, item IV, CPP, art. 78, item IV) TSE – HC 567 SE – Publication date: 08/04/2008.
Federal Justice and connection or salute
Federal Justice: This judges federal crimes and related crimes within its own jurisdiction or related within the jurisdiction of the Common State Justice. This is a special jurisdiction in relation to the common state jurisdiction, to which item IV of article 78 of the CPP applies. It does not judge crimes (related or not) that fall under the jurisdiction of other courts, that is, military and electoral courts. “It is incumbent upon the Federal Court to process and unify related crimes of federal and state competence, the rule of article 78, II, a, of the Code of Criminal Procedure not applying” – Precedent 122 of the STJ. Obviously, as the summary recognizes, if there is a connection between the crimes of federal competence, they are judged in the same process. If the related offense is electoral, there will be no unified judgment. The electoral crime will be judged by the Electoral Justice, and the crime of competence of the Federal Justice, by this one. The same is true if the crime is military.
Federal Justice has no competence for misdemeanors: In accordance with the provisions of article 109, item IV, of the Federal Constitution , federal judges have excluded from their jurisdiction the prosecution and judgment of misdemeanors. Precedent 38 of the STJ complements by saying: “It is incumbent upon the Common State Justice, in the validity of CF/88, to prosecute for criminal misdemeanor, even if practiced to the detriment of goods, services or interest of the Union or its entities”.
Court of Jury and connection or salute
Jury Court and related crimes: This has constitutional competence ( article 5 , item XXXVIII of the CF ) for the judgment of intentional crimes against life. These crimes are listed in article 74 , paragraph 1 , of the CPP: “ Articles 121, §§ 1 and 2 , 122, sole paragraph, 123, 124, 125, 126 and 127 of the Penal Code, consummated or attempted”. According to item I of article 78 of the CPP, the special jurisdiction of the jury applies to related common crimes or continents. Thus, if the crime of rape, for example, is committed in connection with the crime of intentional homicide, the jury will have jurisdiction to try both offenses.
Minimum jurisdiction and related crimes: See “ this same subheading ” in the title Trial of the Jury, in comments to article 69.
Federal and State Jury Court: See this same subheading under the title Jury Court, in comments to article 69.
Court of Jury and prerogative of function provided for in the State Constitution: The forum by prerogative of function does not prevail over the jurisdiction of the Court of Jury if the prerogative of function is established exclusively by the State Constitution. This is the statement of Binding Precedent No. 45 of the STF : “The constitutional competence of the Jury Court prevails over the forum due to the prerogative of function established exclusively by the State Constitution” (see debate that originated the Precedent and jurisprudence subsequent to the statement ). On this subject, see the title “The Jury Court and the forum by prerogative of function ” in comments to article 69 of the CPP.
Jury and function prerogative: If a prosecutor is accused of intentional homicide in co-authorship with another person who does not have jurisdiction due to function prerogative, even with salute ( art. 77, item I ), the other person is sent to the jury. The prosecutor responds before the Court of Justice ( article 96, item III, of the CF ). This is because the competence of the Jury’s Court, which is also constitutional – article 5 , item XXXVIII, letter “d” of the CF must be safeguarded .
Special Criminal Courts and connection or salute
Special Criminal Courts: Article 98, item I of the Federal Constitution states that the Union (in the Federal District and in the territories) and the states will create special courts, staffed by judges, or judges and laymen, competent for conciliation, judgment and the execution of criminal offenses of lesser offensive potential, allowing the transaction and judgment of appeals by groups of judges of the first degree. The courts are regulated by Law No. 9099 , of September 1995 , which in Article 61 considers criminal offenses of lesser offensive potential, for the purposes of their incidence, criminal misdemeanors and crimes to which the law imposes a maximum penalty not exceeding two years, combined or not with a fine. O Sole Paragraph of Article 60 of Law No. 9099/95 , as amended by Law No. 11313/2006 , authorizes that in the meeting of proceedings, before the Common Court or the Jury Court, arising from the application of the rules of connection and continence , the institutes of criminal transaction and the composition of civil damages are observed. In other words, the amendment made by Law No. 11.313 /2006 allows the crimes within the jurisdiction of the Special Criminal Court to be, when connected, processed and judged by the Common Court or by the Jury Court. This same permission was given to the Special Criminal Court of Federal Justice ( Law No. 10,259 /2001, Article 2 , Sole Paragraph). In comments to article 76, Guilherme Nucci argues, with reason, that the infraction of lesser offensive potential cannot be judged in the common jurisdiction: “JECRIM’s competence comes from the Federal Constitution. There is no legal viability for ordinary legislation to change it. Therefore, whether or not there is a connection or salience with another common criminal offense is of little importance. The common offense must be tried by the equally common court. The infraction of lesser offensive potential goes to its natural judge, the JECRIM. Do not even consider the possibility of including the common criminal offense within the jurisdiction of JECRIM, by connection or salute. In the same sense, it is not possible to extend the jurisdiction of the court by ordinary law. Furthermore, it could harm the constitutional principle of broad defense, since the JECRIM rite is extremely brief” (Nucci, Guilherme de Souza. Code of Criminal Procedure Commented . 13th. Ed. National Editorial Group: 2014).