Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 104º CPP – Suspicion and impediment of the MP.

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Art. 104. If the suspicion of the Public Prosecutor’s Office is raised, the  judge, after hearing it, will decide, without appeal, before allowing the production of evidence within a period of three days.

Suspicion and impediment of the MP

Public Prosecutor’s Office:  Covers the Attorney General of the Republic, the Sub-Attorneys General of the Republic who act before the Superior Courts, the Regional Attorneys of the Republic who exercise their functions before the Federal Regional Courts and the Attorneys of the Republic who act in the 1st instance of Justice Federal. Acting before the State Justice has the State Attorney General, the Attorneys of Justice who exercise their functions before the Courts and the Public Prosecutors, in the 1st instance. 

Suspicion and impediment:  As provided for in  article 258 of the CPP,  the bodies of the Public Prosecutor’s Office will not function in cases in which the judge or any of the parties is your spouse, or relative, consanguineous or similar, in a direct or collateral line, up to the third degree , including and extending to them, in what is applicable to them, the prescriptions related to the suspicion and impediments of judges. The norms relating to the judge’s impediment are found in  articles 252 and 253 , and those relating to suspicion are in  article 254 .

Suspicion for partiality

Bias and Suspicion:  Since the MP is biased, how can it be unsuspicious? If the MP is required to remain unsuspected in the process, wouldn’t there be a contradiction when we say that his role is – and necessarily is – partial? We clarify. The partiality that is required of the MP is objective partiality, the partiality comforted and animated by the legal order. It is disinterested partiality, devoid of personal interest. It is the one that is wrapped up and absolutely essential to the effectiveness of the constitutional contradictory (article 5, item LV, of the CF).

Suspicion for partiality: When the performance of the MP body in the process escapes the limits of objective partiality, the partiality comforted and encouraged by the legal order, the disinterested one, devoid of personal interest, and starts to receive a character of intense subjectivity, enters the quicksands of suspicion. Subjective partiality, as a cause of suspicion, contrary to what happens with the causes of suspicion and impediment of articles 252, 253 and 254, does not have an external, concrete, easily verifiable and verifiable reason. Its reasons and causes are internal. The motivations can be the most diverse. These can be traumatic personal experiences, religious convictions, political or ideological convictions, etc. In any case, it is not important to identify the intimate reasons for the partiality in order to recognize the suspicion of partiality. It must be recognized and enacted whenever it shows its face. How is it possible to diagnose it? In fact, it is a little more difficult to identify it in the Public Prosecutor’s Office than in the judge’s, since partiality is a normal characteristic of the action of the accusing body. It is not one or two isolated acts that characterize her. Subjective partiality will appear when the Public Prosecutor’s Office starts, in the course of the process, to propose and practice illegal acts, in a continuous, sequential, successive manner, resorting to unorthodox and commendable methods, aiming at condemnation. 

Spontaneous recognition and by argument

Spontaneous acknowledgment:  Being suspected, the member of the MP must spontaneously acknowledge his suspicion, in writing and stating the legal reason, immediately forwarding the process to his substitute (application by analogy of article  97 of the CPP ).

Argument of suspicion:  When the party intends to argue the suspicion of the Public Prosecutor’s Office, it must do so in a petition, adducing its reasons accompanied by documentary evidence or the list of witnesses. The judge, after hearing him, will decide, without appeal, before allowing the production of evidence within a period of three days.

Resources, nullity and constitutionality of the device

Appeals, MS and HC:  There is no provision for any appeal against the decision of the judge who recognizes, or not, the suspicion of the MP body. If the presence (or absence) of suspicion can be demonstrated,  habeas corpus  and writ of mandamus are applicable.

Nullity:  Nullity is relative. The suspicion must be raised by the defense as soon as it becomes aware of it. Once the suspicion is declared by the judge, the acts performed must be declared null, unless it is possible to demonstrate the non-occurrence of damage.

Constitutionality of the device:  The doctrine of non-reception of article 104 of the CPP is considered, in view of the accusatory principle. It would be up to the institution of the Public Prosecutor’s Office to remove the suspected prosecutor, not the judge. It seems to us that Article 104 is in force. If the Public Prosecutor’s Office is suspect, the accused and the magistrate cannot be at the mercy of the decision of the institution of the Public Prosecutor’s Office. The action belongs to the MP, it’s true. But it is no less true that the process is the responsibility of the judge. In fact, according to article  251 of the CPP, it is up to the judge to ensure the regularity of the process and maintain order in the course of the respective acts. The judge cannot be forced to preside and conduct the process until its end, transporting a suspected prosecutor with him, which, by the way, constitutes a cause for nullity. If the magistrate can remove an inept defender, there is no reason to not allow him to remove the suspected accuser.


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