Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 105 CPP – Suspicion of experts and others.

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 Art. 105. The parties may also claim that experts,  interpreters and court clerks or officials are suspects, the judge deciding on a flat basis and without appeal, in view of the alleged matter and immediate evidence.

Suspicion of experts, interpreters and servants

Causes for suspicion of experts, interpreters and civil servants:  The provisions on suspicion of judges extend to civil servants and justice officials, as applicable to them ( article 274 of the CPP ). The provision on suspicion of judges is extended to experts, as applicable to them ( article 280 ). Interpreters are, for all intents and purposes, equivalent to experts ( article 281 ). Also, specifically in relation to experts,  article 279 provides  that those who have given testimony in the process or previously opined on the object of the expertise, illiterate persons and those under 21 years of age cannot exercise this function.

Spontaneous acknowledgment:  Being suspicious, any of the persons mentioned in device 105 must spontaneously declare it.

Argument of suspicion:  When the party intends to allege the suspicion of any of the persons mentioned in Article 105, it must do so in a petition adducing its reasons, accompanied by documentary evidence or the list of witnesses. The judge, after listening to it, will decide, without recourse, before admitting the production of evidence.

Official recognition by the judge:  There is no impediment for the judge to take the initiative to verify the suspicion of the expert, interpreter or court clerk. It is the magistrate’s duty to ensure the regularity and validity of the process.

Appeals, MS and HC:  There is no provision for any appeal against the decision of the judge who recognizes the suspicion of the persons referred to in this device. If the presence (or absence) of suspicion can be demonstrated,  habeas corpus  and writ of mandamus are applicable.

Suspected expert and absolute nullity:  Failure to examine the body of the crime results in absolute nullity of the process ( article 564, III, “c ”). Carrying out a forensic examination by an unsuspecting expert is a requirement for the existence of a forensic examination, that is to say, an examination carried out by a suspected expert is the same as a non-examination, or a non-existing examination. Thus, participation in this examination by a suspected expert implies absolute nullity of the process due to lack of a corpus delicti examination.

Suspected interpreter and clerk and nullity:  Nullity is relative. The suspicion must be raised by the party 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.

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