The term ad judicem, derived from the Latin phrase ad judicem provocare, refers to the submission of a matter to the competent jurisdictional authority. In Procedural Law, it encompasses functional competence and the principle of investiture, defining the magistrate's capacity to exercise jurisdiction over a specific case.
Concept and Legal Nature
The expression ad judicem, in the strict sense of legal dogmatics, is not an isolated principle but constitutes the basis of the procedural relationship that binds the parties to the adjudicating body. Its legal nature is that of a procedural prerequisite for validity, specifically regarding the competence of the court (competentia ad judicem). The legitimacy of exercising jurisdiction depends on the correct determination of the state body invested with the power to resolve the conflict, respecting the rules of judicial organization.
Historical Origin and Evolution
Historically, the phrase dates back to Roman Law, where the distinction between the in iure phase (before the magistrate) and the apud iudicem phase (before the judge) was fundamental. With the evolution of the Modern State and the separation of powers, the term became consolidated in procedural doctrine to designate the suitability of the jurisdictional body according to the rules of absolute and relative competence. In the Brazilian system, this evolution reflects the transition from a system of diffuse competencies to the constitutionalized model of functional and territorial competence, structured by the 2015 Code of Civil Procedure and the 1988 Federal Constitution.
Legal Provisions and Normative Structure
The foundation of the institute is dispersed throughout the legal system, with highlights including:
- Federal Constitution (CF/88): Articles 92 to 126, which define the structure of the Judiciary and the original competence of the Courts, which are constituent elements of ad judicem authority.
- Code of Civil Procedure (CPC/2015): Articles 42 to 66, which regulate competence, establishing the criteria for determining the competent court and reaffirming the principle of the Natural Judge.
- Code of Criminal Procedure (CPP): Articles 69 to 91, which deal with jurisdictional competence in criminal matters, linking the legitimacy of the procedural act to the correct determination of the court.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has consolidated the understanding that ad judicem competence is a matter of public policy. According to STJ Precedent 33, "relative incompetence cannot be declared ex officio," noting, however, that absolute competence is cognizable at any time and degree of jurisdiction. Recent decisions by the STF, especially regarding the control of original competence (e.g., Petitions and Inquiries), reaffirm that the usurpation of ad judicem competence leads to the absolute nullity of decision-making acts, in compliance with due process of law.
Related Principles and Doctrinal Divergences
The institute is intrinsically linked to the Principle of the Natural Judge (Art. 5, XXXVII and LIII, CF/88). Contemporary doctrine, represented by authors such as Cândido Rangel Dinamarco and Fredie Didier Jr., discusses "perpetuatio jurisdictionis" as a corollary of ad judicem, where competence is fixed at the moment of registration or distribution of the initial petition, ensuring the stability of the litigation. Doctrinal divergences often arise in the application of competencies by connection or continence, where the ad judicem criterion is made flexible in favor of procedural economy and the prohibition of contradictory decisions.
Contemporary Relevance
In the current legal landscape, marked by the digitalization of proceedings (100% Digital Court), the notion of ad judicem takes on new contours. Competence is no longer just spatial, but functional-technological. The correct observance of competence criteria is what ensures legal certainty and the trust of litigants in the justice system, avoiding "forum shopping" and ensuring that jurisdictional services are exercised only by the constitutionally authorized authority.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. Law No. 13,105, of March 16, 2015 (Code of Civil Procedure).
- BRAZIL. Decree-Law No. 3,689, of October 3, 1941 (Code of Criminal Procedure).
- STJ, Precedent No. 33: "Relative incompetence cannot be declared ex officio."
- STF, ADI 6.524, Rapporteur Justice Roberto Barroso.
