Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 564 of the CPP – Absolute Nullities

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Art. 564. Nullity will occur in the following cases:

I – due to incompetence, suspicion or bribery of the judge;

II – due to illegitimacy on the part;

III – for lack of the following formulas or terms:

a) the denouncement or the complaint and the representation and, in the cases of criminal misdemeanors, the ordinance or the arrest warrant in flagrante delicto;

b) examination of the corpus delicti in crimes that leave traces, subject to the provisions of article 167;

c) the appointment of a defender to the present defendant, who does not have one, or to the absent one, and of guardian to the minor of 21 years old;

d) the intervention of the Public Prosecutor’s Office in all the terms of the action brought by him and in those brought by the offended party, when dealing with a crime of public action;

e) summons of the defendant to see himself prosecuted, his interrogation, when present, and the time limits granted to the prosecution and defense;

f) the pronouncement sentence, the libel and delivery of the respective copy, with the list of witnesses, in proceedings before the Jury Court;

g) the subpoena of the defendant to the trial session, by the Jury Court, when the law does not allow the trial by default;

h) subpoena of the witnesses listed in the libel and opposition, under the terms established by law;

i) the presence of at least 15 jurors for the constitution of the jury;

j) drawing lots of jurors for the sentencing council in a legal number and their incommunicability;

k) the questions and the respective answers;

l) the prosecution and defense, in the trial session;

m) the sentence;

n) ex-officio appeal, in cases where the law has established it;

o) subpoena, under the conditions established by law, for the acknowledgment of sentences and orders subject to appeal;

p) in the Federal Supreme Court and in the Courts of Appeal, the legal quorum for the trial;

IV – due to omission of formality that constitutes an essential element of the act.

V – as a result of a decision lacking grounds. (Included by Law No. 13,964, of 2019) (Effective)

Single paragraph. Nullity will also occur, due to deficiency of the questions or their answers, and contradiction between them. (Included by Law No. 263, of 2.23.1948)

Theory

https://youtube.com/watch?v=XmoxN5gZc7s%3Ffeature%3Doembed

Pedagogical effect: See title Importance of Nullities in Comments on Article 563.

Essential acts and proof of damage: See title Void process and damage in comments on article 563.

Identification of the damage: See titles Identifying the damage and impossibility of its proof and Rereading of article 563 of the CPP, Gustavo Badoró and direct and remote damage in comments to article 563.

Essential acts, non-existence, invalidity, irregularity and nullity : See this same title in comments to article 563.

Plans of existence, validity and effectiveness: See this same title in comments to article 563.

Absolute nullity. Effects of judicial recognition of nullity: See this same title in comments to article 563.

Relative nullity: See this same title in comments to Article 563.

Extension of the effects of judicial recognition of nullity : See this same title in comments to article 563.

Incompetence

https://youtube.com/watch?v=GAFj610Gj9s%3Ffeature%3Doembed

Forms of determining jurisdiction: Jurisdiction is determined on the basis of the matter, on the basis of the person or on the basis of the territory. Ratione materiae, ratione personae and ratione loci, respectively. The CPP, in its article 69 , lists the ways in which competence is determined, namely: by the place of the infraction, by the domicile or residence of the defendant, by the nature of the infraction, by the distribution, by the connection or continence, by the prevention and by the role prerogative. Jurisdiction is, as a rule, determined by the place of the offence. In the event that the location of the infraction is not known, jurisdiction will be based on the location of the defendant’s domicile or residence. Competence ratione materiaeconcerns the competence determined by reason of the nature of the infraction. When there is more than one judge in the same judicial district, jurisdiction is fixed by distribution. By way of prevention, when two or more judges are equally competent, the one who has preceded the others in the practice of an act of the process or measure related to it will judge. It will also be signed by connection or salute, in the cases of articles 76 and 77 . Jurisdiction by prerogative of function or “ratione personae” rests with the courts. It concerns the judgment of offenses committed by people who exercise certain functions, such as ministers, judges, ambassadors and others listed in the law.

Absolute incompetence: Incompetence can be absolute or relative. Article 567 does not apply to absolute incompetence , when it prescribes that incompetence annuls only decision-making acts, whether those concerning matters of merit or procedure, including tangents to the production of evidence. Article 109 allows the judge to declare himself incompetent, regardless of the arguments of the parties. Absolute competence cannot be extended. The declaration of nullity resulting from absolute lack of jurisdiction does not depend on timely arguments, and may be recognized even after the final judgment has passed – as long as it is not an acquittal decision –, even by means of habeas  corpus .

Relative incompetence: Relative competence is normally verified when considering the place of the infraction, the domicile of the accused, the nature of the infraction related to determinations of laws of judicial organization, the distribution, the connection or continence and the prevention. The incompetence of the forum, territorial or ratione loci , is relative. Territorial incompetence occurs when the violator of the law is being prosecuted in a different jurisdiction than the one in which the crime was committed. Once the incompetence has been declared and the records have been sent to the competent judge, the latter, in the event that the records have been forwarded to him by a relatively incompetent judge, will annul only the decision-making acts, since the instructive ones are valid (article 567). Relative incompetence is remedied if it is not argued in a timely manner. The objection of incompetence must be lodged within the period of the preliminary defense ( article 396 – A, paragraph 1 ) .

Absolute and relative competence. Remission: See comment to Article 69 .

Prevention. Relative nullity: “The nullity resulting from the non-compliance with the criminal competence for prevention is relative” ( Sumula 706 of the STF ).

Negative conflict, ratification, nullity of acts and prescription: See this same title in comments on Article 108 .

Jurisprudence

It is related to the nullity resulting from the non-compliance with the criminal competence for prevention, which must be claimed in a timely manner, under penalty of estoppel. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

RHC 067107/MS, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/13/2016, DJE 09/21/2016

AgRg in AREsp 880904/RJ, Rel. Minister Rogerio Schietti Cruz, judged on 09/01/2016, DJE 09/12/2016

HC 301757/SP, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 06/07/2016, DJE 06/13/2016

RHC 042770/PE, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 02/02/2016, DJE 02/23/2016

RHC 061130/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/01/2015, DJE 12/18/2015

HC 207983/SP, Rel. Minister Nefi Cordeiro, judged on 10/20/2015, DJE 11/06/2015

Impediment or suspicion

https://youtube.com/watch?v=lNaU4tFwuoU%3Ffeature%3Doembed

Nullity in the face of suspicion and impediment of the judge:  Article 564, item I provides that nullity will occur due to incompetence, suspicion or bribery of the judge. Suspicion is the legal presumption of bias by the judge. It is an institute that removes the magistrate from a certain process. Article 564, item I, of the CPP does not include impediments as a cause of nullity. It is an unimportant omission by the legislature. Article 3 applies in this case , which allows analogical application. Now, if a suspected judge cannot instruct and judge a case, neither can the impeded judge. Suspicion, bribery and impediment of the judge provoke absolute nullity. Regardless of timely argument.

Suspect of the judge: Article 254 lists the cases of suspicion of the judge. See comments to Article 254 .

Judge’s impediment: Articles 252 and 253 list the cases of judge’s impediment.

Prohibition of kinship between the judge and the defender: See comments to Article 267 .

Extension to jurors of the causes of impediment, suspicion and incompatibility of judges: See this same title in comments to article 252 .

Suspicion and impediment of the prosecutor, clerks, experts and interpreters: The public prosecutor’s office, clerks or court officials and experts or interpreters will refrain from serving in the process when there is incompatibility or legal impediment, which they will declare in the case file. Participation implies relative nullity. If there is no abstention, the incompatibility or impediment may be argued by the parties, following the procedure established for the exception of suspicion ( article 112 ). Depending on the essentiality of the omitted act (expert capital enemy of one of the parties, by way of example), nullity is absolute.

Expert impediment: See this same title in the comments to the article under review.

Partiality of the MP body:  When the role of the MP body in the process escapes the limits of objective partiality, the partiality comforted and animated by the legal order – that disinterested, devoid of personal interest –, and starts to receive a character of intense subjectivity, enters into the shifting sands of suspicion. On the prosecutor’s partiality and nullity, see the title Part or fiscal of the law? in notes to Article 257 and also comments to Article 107 .

Jurisprudence

Eventual nullities that occurred in the Jury’s Plenary, resulting from impediment or suspicion of jurors, must be argued at the appropriate time, under penalty of estoppel. Source: jurisprudence in theses (STJ).

Judgments:

HC 208900/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/11/2016, DJE 11/08/2016

AgRg in REsp 1366851/MG, Rel. Minister Nefi Cordeiro, judged on 10/04/2016, DJE 10/17/2016

HC 342821/RO, Rel. Justice Felix Fischer, Fifth Panel, judged on 03/15/2016, DJE 04/01/2016

AgRg in REsp 1500980/RS, Rel. Minister Maria Thereza de Assis Moura, judged on 03/17/2015, DJE 03/24/2015

HC 139835/SP, Rel. Minister Campos Marques (Judge summoned from the TJ/PR), Fifth Panel, judged on 08/27/2013, DJE 09/02/2013

HC 167133/SC, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/27/2011, DJE 10/28/2011

Bribery

https://youtube.com/watch?v=zRCVlwrPxA4%3Ffeature%3Doembed

Bribery and nullity: Bribery means to corrupt, to bribe. It is the offer of any compensation in order to achieve the performance of an act contrary to the law. A bribed judge is a judge who commits a crime of concussion ( Article 316 of the CP ) or a crime of passive corruption ( Article 317 of the CP ). Bribing the judge makes the process unusable; the process is null, null are its instructive and decision-making acts. Suspicion and impediment give rise to the presumption of partiality. Bribery creates certaintyof partiality. It matters little when the bribery took place, the process is null from the moment the judge begins to act in it, since it is reasonable to assume that, from the beginning, there was already a willingness to allow oneself to be bribed.

Illegitimacy of the party

https://youtube.com/watch?v=kjQNsP2Svm8%3Ffeature%3Doembed

Legitimacy and capacity: Legitimacy means the capacity to stand in court. Illegitimacy is the incapacity for this same purpose. Capacity is normally subdivided into three types: 1 – capacity to be a part – every person has personality, being capable of rights and obligations. Every person is capable of being a part. This is the capacity existing in everyone; 2 – the procedural capacity – is the one that the person has to exercise their rights. The insane and the minors don’t have it. Its representatives exercise it; 3 – the ability to postulate – this the law only confers on the MP and the lawyer.

parties and legitimacy: There is much debate about who is a party to criminal proceedings. Some deny the existence of parties to the lawsuit; others, like Manzini, claim that there is only one party: the accused. Tornaghi argues that the accuser and the accused are parties to the criminal process. The accuser is the State (through its body, the Public Prosecutor’s Office) in public actions, and the victim or his successors in private actions. The accused is the defendant. Part is who acts in the process with interest. Abstracting this theoretical discussion, the expression “party” referred to in article 564, inc. II, of the CPP, are: the State, through its body the MP in public actions; the offended, in private actions; the victim’s spouse and relative, in case of death or declaration of absence of the victim in private actions; the legal representative of the minor, the ward and the guardian; the prosecutor’s assistant. The denouncement or complaint must be rejected when there is illegitimacy on the part. About the topic, see titleIneptitude of the complaint in comment to article 395 .

The Public Ministry: The Public Ministry is a legitimate party in public actions. In the private ones, although he participates in the action, he is an illegitimate party to initiate it. The action is public in the so-called crimes of public action. Article 24 of the CPP provides that, in crimes involving public action, it must be promoted by the MP. On types of criminal action, see comments to Article 24 . If the Public Prosecutor’s Office offers a complaint in a private action crime, there is active illegitimacy on the part. There is, likewise, illegitimacy of the prosecutor when the principle of the natural prosecutor is violated.

The offended party: The offended party is a legitimate party in the criminal proceedings when it comes to private action. Private action begins with a complaint. As for private criminal action, there are three types:  exclusively private criminal action ; subsidiary private criminal action   and the very personal private criminal action . The exclusively private or private criminal action of the offended party is proposed by the offended party or his representative in crimes involving private action. Subsidiary private criminal action is proposed by the victim or his representative in crimes involving public action when it is not brought within the legal period. A very personal private criminal action is one that can only be proposed by the offended party and no one else. Thus, the legitimacy of the offended party is subject to two conditions: that it is in fact the offended party who brings the action ( ad causa legitimacy ) and that the private action is appropriate. On the subject, see the heading Crimes of private and public action. Distinction in Comments to Article 24 . On subsidiary private criminal action, see comments to article 29. On the offended party and his representative in the process of private action crimes, see comments on article 30 .

Spouse, ascendant, descendant or sibling: When the offended person dies, or when he/she is declared absent by court decision, the right to file a complaint or to continue the private action is transferred to the spouse, ascendant, descendant or sibling (article 31 of the CPP ) .

The legal representative of the minor, the ward and the guardian: The function of the legal representative is to supply the lack of procedural capacity of the offended party. Parents and guardians are legal representatives of minors and guardians of the mentally ill or retarded. They, and only they, are a legitimate party to initiate the private action. The nullity arising from the illegitimacy of the party’s representative may be remedied by ratifying the procedural acts ( article 568 of the CPP ). Ratification, however, can only be made before the expiry of the six-month period of decay, as provided for in article 38., according to which the right to file a complaint expires if it is not exercised within a period of six months, counted from the day the perpetrator of the crime becomes known, or, in the case of article 29, the day it expires the deadline for filing the complaint. About the victim and his representative, see comments on article 30 .

The private accuser’s lawyer: The private accuser, not having the capacity to postulate, needs a lawyer to promote and proceed with the prosecution in the private action, whether private to the offended party or a private subsidiary. The accuser’s representative is illegitimate when he does not have special powers to file the complaint. Pursuant to Article 44 , the complaint may be filed by a prosecutor with special powers, and the name of the complainant and the mention of the criminal act must appear in the power of attorney, except when such clarifications depend on steps that must be previously requested in the criminal court. The nullity arising from the illegitimacy of the party’s representative may be remedied at any time, ratifying the procedural acts ( article 568 of the CPP).

The assistant to the prosecution: The assistant to the prosecution acts in the criminal process collaborating with the MP and aiming at the conviction of the defendant. While the private prosecutor effectively exercises the prosecution and the rights inherent to it, the prosecutor’s assistant only collaborates with the prosecution. The private prosecutor acts in private actions; the assistant, in public. The wizard is not part of the process; consequently, it cannot be an illegitimate party. Article 564, II, is not applicable when the presence of the assistant is illegal. The accusing party in public actions is the MP; the prosecution’s assistant, when present, is a mere collaborator.

The accused: He is a party to the criminal proceedings. However, contrary to what happens in civil proceedings, the accused is not usually thought of as an illegitimate party . This expression is not often used. It matters little whether the accused is guilty or innocent. If there is just cause, it is a legitimate party to respond to criminal action.

Defender: The illegitimacy of the accused’s representative can be remedied by ratifying the procedural acts ( article 568 ). If the appointment or power of attorney is missing, these omissions can be corrected. But it is not always possible to cure addiction. If a defender who is not registered with the OAB acts in the process, the process is void pursuant to article 564, item III, letter “c’, due to the absence of defense.

Illegitimacy and absolute nullity: Nullity due to illegitimacy of the party is absolute. When the illegitimacy belongs to the party’s representative, the process may be remedied by ratifying the procedural acts (article 568).

the complaint

https://youtube.com/watch?v=Oekv-x-AQuo%3Ffeature%3Doembed

Absence of ordinance and arrest warrant in flagrante delicto: Article 564, item III, letter “e”, alludes to the nullity of the process due to lack of ordinance and arrest warrant in flagrante delicto. This part of the device was not accepted by the new CF. There are no more processes that start by ordinance or arrest warrant in flagrante delicto.

Nullity of the denunciation: See title The denunciation in comments to Article 41 .

Absence of mandatory amendment to the complaint: The lack of mandatory amendment is equivalent to the absence of the complaint. Absent the amendment (see comments on Article 384 ), the process is null, from the moment the complaint should have been amended.

Amendment to include one more accused: It is possible, provided that the included accused is also allowed ample defense. If the defense of the included accused could harm the defense of the others, the procedural instruction will have to be redone.

Extension of the effects of nullity: If the complaint is null, the defect infects all other subsequent procedural acts, not exactly because the complaint is the first part of the process, but because its descriptive content is what determines the course of the defense.

Representation and requisition

https://youtube.com/watch?v=U9jQtlCo05E%3Ffeature%3Doembed

Representation, requisition and nullity: In crimes subject to conditioned public action, the representation of the offended party or the request of the Minister of Justice are conditions for the procedure to be carried out. Representation is the manifestation of the will of the offended party or his representative for the initiation of proceedings against his offender. Request is permission to initiate the process. With regard to representation, see comments on article 39 and, on requisition, see title Requisition in notes to article 24. Article 564, III, “a”, of the CPP provides that the absence of representation entails nullity. Silence regarding the request. This silence, however, means nothing. By analogical application, the absence of the request also generates nullity. By determination of article 569 , the omissions of the representation may be supplied before the final judgment, but before the expiry of the six-month statute of limitations ( article 38 ).

the complaint

https://youtube.com/watch?v=RspuaTqJsDs%3Ffeature%3Doembed

Notion: When criminal prosecution depends on a complaint, this condition is expressed in the typifying norm. The commencement of action upon complaint is always expressly provided for in criminal law. The content of the complaint is the same as the complaint. It must contain: the exposition of the criminal fact and its circumstances, the qualification of the accused, the classification of the crime, the list of witnesses and the signature of the victim.

Complaint:  Below, everything that is said for the complaint applies, in principle, to the complaint.

Complaint. Requirements and nullity: See comments to article 41.

Ineptitude and rejection of the complaint:  See comments to  Article 395 .

General topics relating to criminal action:  See comments on  Article 24 .

Examination of the corpus delicti

https://youtube.com/watch?v=5af7yoETKAI%3Ffeature%3Doembed

Direct, indirect examination and nullities: See comments to article 158 , in particular the title Absence of examination and nullity .

Generalities: Examination derives from the Latin Examen , meaning pondering, verification. Corpus delicti is the result of the crime and the set of circumstances. The examination of the corpus delicti aims to identify the sensitive consequences of the criminal act. Its purpose is to prove the materiality of the crime. As for its legal nature, it is a means of proof. Due to the importance of the corpus delicti examination, the legislator sanctions the nullity of the process when it is absent in crimes that leave traces. Thus, if the crime leaves traces and the examination is not arranged, the process will be null.

Indirect examination: If the traces have disappeared (but only in this case), the direct examination can be replaced by the indirect one. If the disappearance of traces is due to the negligence of the authority, the indirect examination does not replace the direct one. The examination of the corpus delicti is essential. If the impossibility of obtaining it is not proved, the indirect examination has no value.

Expertise to clarify the truth: By provision of article 184 , any expertise, when necessary to clarify the truth, if requested by the party, cannot be denied by the judge or the police authority.

Non-official expert: The corpus delicti examination may be carried out by an official or non-official expert ( article 275 ). An official expert is one who has an employment relationship with the State. Unofficial expert does not have it. Just as the indirect examination is only valid when the direct examination cannot be carried out because the traces have disappeared, the unofficial examination is only valid when the official examination cannot be carried out due to the lack of an official expert.

Expert impediment: See notes to Article 279 . There is also  Article 280 , according to which the provisions on suspicion of judges are extended to experts, as applicable to them . The hypotheses of suspicion are described in  article 254 . It should be noted that the  suspicion  referred to in Article 279 must be understood in a broad sense to also cover cases of impediment ( Article 252 ).

Carrying out the corpus delicti examination in the course of the process: If it is still possible to take the examination, there is no impediment to its performance. However, all acts dependent on the examination are annulled, that is, those in which potentially the absence of the examination could have caused harm.

Full defense, due process and attorney rights

https://youtube.com/watch?v=XX5zd1pwkhk%3Ffeature%3Doembed

Interest represented by the defense in the process: The defense represents in the process the interest (of society and the State) in the acquittal of the innocent. It is a social interest to the extent that the aspirations of the community are security and tranquility. These aspirations would not be achieved if citizens were not sure that they would have an effective and participatory defense if they faced criminal proceedings. As well as the contradictory principle, that of full defense comes from the meaning of the process as an individual guarantee, a meaning that does not exclude the meaning of the process as a guarantee of the collectivity itself. Defense, as far as its nature is concerned, is law. Constitutional right.

Full defence, due process and lawyer’s rights: See comments to Article 261 .

The mandatory presence of a defender:  The presence of a defender is mandatory throughout the course of the criminal proceedings. The accused has the right to appoint his lawyer. If he is poor, if he is absent or on the run, or even if he does not want a lawyer to defend him, the judge will appoint one. It is from the wording of  article 263  that, if the accused does not have one, he will be appointed defender by the judge, safeguarding his right to, at any time, appoint another of his trust, or to defend himself, in case have license.

Defender. Constitution and appointment

https://youtube.com/watch?v=VHGjDkUAJ6w%3Ffeature%3Doembed

Public defender, dative defender, constituted defender, technical self-defense and  ad hoc defender :  See comments to article 263 .

Constituted defender who resigns his mandate:  If the constituted defender resigns his mandate, the judge cannot appoint another one immediately, under penalty of nullity. He must subpoena the accused, granting him time to constitute another. If no other is constituted, then the magistrate will appoint a defender. In this regard, the Precedent 708 of the STF : “The judgment of the appeal is null if, after the manifestation in the records of the resignation of the only defender, the defendant was not previously summoned to constitute another one.”

Ad hoc defender  :  It is the defender for the act, and only for the act, such as participation in a hearing and presentation of some defensive procedural piece. The presence of a defender in criminal proceedings is necessary in order to ensure the constitutional principles of full defense and adversarial proceedings. It matters little that the defendant has previously appointed or constituted a lawyer to defend him in the process to which he responds; if this or that one fails, without justification, to attend the act, the magistrate must appoint another for its valid performance. This is what can be seen from paragraph 2 of article 265 :It is up to the defender to prove the impediment until the opening of the hearing. Failure to do so, the judge will not determine the postponement of any act of the process, and must appoint a substitute defender, even if provisionally or only for the purpose of the act. The non-appointment of a defender for the act implies absolute nullity. If the accused’s lawyer fails to perform any duty that the judge deems important for the effectiveness of the full constitutional defense, the magistrate must appoint an  ad hoc defender  (for the act). In addition, the titular lawyer will persist in the exercise of the defense.

Conflicting Defenses, Different Defenders:  Accused with conflicting defenses cannot be defended by the same attorney. Colliding defenses sponsored by the same defender cause nullity.

Mandatory prior defense and nullity : Prior defense is mandatory. If it is not presented in time, the judge must appoint a defender to offer it. In this case, the appointed defender will have a view of the file for 10 days. The absence of a response means nullity. The appointed counsel may not be able to contact the accused in time, missing the deadline for calling witnesses. Nothing prevents you from listing these witnesses later, referring to the importance of their hearing. The judge must determine the questioning of the witnesses listed, even ex officio ( article 209 ).

Prohibition of kinship between the judge and the defender: See comments to Article 267 .

Summons by public notice, advance production of evidence and appointment of defender: If the accused, summoned by public notice, does not appear or appoint a lawyer, the process and the course of the statute of limitations will be suspended, and the judge may determine the early production of evidence considered urgent . Once it is decided to carry out the anticipated production of the evidence, the Public Prosecution Service must be summoned to accompany it and must be appointed a dative defender for the same purpose. Without the subpoena of the MP and the appointment of a defender for follow-up, the anticipated production of evidence will be null and void.

Jurisprudence

The judgment of the appeal is void if, after the resignation of the sole defender is manifested in the records, the defendant was not previously summoned to appoint another. (Precedent n. 708/STF). Source: jurisprudence in theses (STJ).

Judgments:

HC 329263/BA, Rel. Minister Sebastião Reis Júnior, Rapporteur by Judgment Minister Rogerio Schietti Cruz, judged on 06/16/2016, DJE 07/01/2016

HC 100524/PE, Rel. Minister Nefi Cordeiro, judged on 10/20/2015, DJE 11/06/2015

HC 300490/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/03/2015, DJE 09/14/2015

HC 258339/MG, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 04/28/2015, DJE 05/18/2015

HC 207119/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 03/27/2014, DJE 05/22/2014

RHC 037159/PA, Rel. Minister Laurita Vaz, Fifth Panel, judged on 04/24/2014, DJE 05/08/2014

The death of the only lawyer, even if the fact is not communicated to the court, may give rise to the nullity of subpoenas made in his name. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 360720/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 08/16/2016, DJE 08/26/2016

HC 332960/SP, Rel. Minister Rogerio Schietti Cruz, judged on 06/16/2016, DJE 06/28/2016

HC 279501/SP, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 04/07/2016, DJE 04/15/2016

HC 328254/MS, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 12/10/2015, DJE 02/05/2016

HC 109035/SP, Rel. Minister Nefi Cordeiro, judged on 04/16/2015, DJE 04/27/2015

HC 183113/SP, Rel. Minister Marilza Maynard (TJ/SE Judge), judged on 03/11/2014, DJE 03/31/2014

The judgment of the appeal is void if, after the resignation of the sole defender is manifested in the records, the defendant was not previously summoned to appoint another. (Precedent n. 708/STF). Source: jurisprudence in theses (STJ).

Judgments:

HC 329263/BA, Rel. Minister Sebastião Reis Júnior, Rapporteur by Judgment Minister Rogerio Schietti Cruz, judged on 06/16/2016, DJE 07/01/2016

HC 100524/PE, Rel. Minister Nefi Cordeiro, judged on 10/20/2015, DJE 11/06/2015

HC 300490/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/03/2015, DJE 09/14/2015

HC 258339/MG, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 04/28/2015, DJE 05/18/2015

HC 207119/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 03/27/2014, DJE 05/22/2014

RHC 037159/PA, Rel. Minister Laurita Vaz, Fifth Panel, judged on 04/24/2014, DJE 05/08/2014

Defender. citation and subpoena

https://youtube.com/watch?v=UKzIqmTyplc%3Ffeature%3Doembed

Lack of subpoena of the defender: In compliance with the constitutional principles of the adversarial system and ample defense, the criminal procedural law orders that no accused, even if absent or on the run, will be prosecuted or tried without a defender (article 261 ) . The logical conclusion of the procedural commandment is the need to subpoena the defender to carry out the procedural acts. The absence of subpoena from the defender generates the nullity of the act that should be carried out with his presence. However, if the defender not summoned, or invalidly summoned, attends the act before its consummation, the nullity will be remedied, even if he appears for the sole purpose of arguing it. The judge will, however, order the suspension or postponement of the act when he recognizes that the irregularity may harm the right of the party (article 570 ). If the defender is not summoned, and if he does not appear, and if the act is carried out without his presence, there will be nullity. What if the judge appoints a defender for the act? If the defendant had a previously constituted or appointed lawyer, who was not subpoenaed, the nullity persists. The irregular intervention of a dative defender entails the nullity of all the acts in which he participated.

Lack of subpoena of the issuance of precatoria: Precedent 155 of the STF  says  : “It is related to the nullity of the criminal process due to lack of subpoena of the issuance of precatoria for questioning a witness”. If it is relative, according to Precedent 155, that only means, and only, that once it is raised in due course, there is nullity. The existence of this nullity can only be ruled out if the absence of damage is demonstrated. The difference between absolute nullity is not that in the absolute nullity it is not necessary to prove prejudice, and in the relative nullity it is necessary. The difference between them is that the relative depends on a timely argument and admits the demonstration of non-existence of prejudice; the absolute does not depend on an argument and the presumed existence of prejudice does not admit proof to the contrary.

Failure to notify the date of the hearing: Precedent 273 of the STJ  prescribes  : “Once the defense has been notified of the issuance of the letter rogatory, it becomes unnecessary to notify the date of the hearing in the deprecated court”. This understanding violates the principles of broad defense and contradictory. The defender cannot be forced to constantly contact the deprecated court, under the risk of, failing to do so, losing the date of the hearing. There is null. It’s relative. It must be argued in due course.

Defendant summoned by public notice and the beginning of the period for the defense: In ordinary and summary proceedings, once the denunciation or complaint is offered, the judge – if he does not reject it outright – will receive it and order the summons of the accused to respond to the accusation, in writing and within ten days –  article 396  (Wording provided by Law No. 11,719, of 2008). In the case of citation by public notice, the deadline for the defense will begin to flow from the personal appearance of the accused or the constituted defender – article 396 and its sole paragraph . Considering that the citation by public notice is fictitious (and fictitious is what is imaginary), and also taking into account that article  8, item 2, letter “b”, of the annex to the Pact of San José da Costa Rica, a norm that is hierarchically superior to ordinary law, establishing as a judicial guarantee  prior and detailed communication to the accused of the accusation formulated,  it is essential, under penalty of nullity, that the summons opening the period for the defense contain the same requirements foreseen for the citation, which are those of  articles 352  and  357 . In addition, the provisions of  Article 370 :  In subpoenas of the accused, witnesses and other persons who must be aware of any act, the provisions of the previous Chapter shall be observed, as applicable,  (which contain the rules for summoning ).

Publication of the agenda in the courts:  The wording of  Precedent 431 of the STF : “The judgment of a criminal appeal, in the second instance, without prior subpoena, or publication of the agenda, except in habeas corpus is null”. It should be noted that the STF “ reformulated the understanding that previously prevailed and that had been reproduced in the statement of Precedent No. 431/STF and, currently, the understanding has been that the absence of subpoena for the trial session when there is a request for such is considered cause for nullity of the trial, as any possibility of oral support was frustrated ” ( RHC 110622,  Rapporteur Justice Dias Toffoli). The justification given for not needing to notify the defender of the judgment is that the  habeas corpus it has to be processed quickly. With the electronic process – and given the speed with which it is possible to process the subpoena of the parties – this justification loses its raison d’être, and the defender must always be notified of the trial date, regardless of an express request. It should be noted that, under the terms of  Precedent 117 of the STJ , between the judgment and the publication of the agenda, a period of 48 hours must pass. 

Plurality of lawyers:  Since there is more than one lawyer defending the same accused, for the trial to take place, it is enough to subpoena one of them. Being more than one accused with different lawyers, all of these must be subpoenaed. The name of the lawyer and the accused must appear correctly in the subpoena, under penalty of nullity of the judgment.

Summons of the Defender, Public Ministry and Others: See titles  Summons of the Defender, Public Ministry and Others in comments to Article 370 .

Notice of Judgment: See title Notice of Judgment in Comments on Article 370 .

Summons in special courts: See Summons in special courts in comments to article 370 .

Subpoenas and deadlines in the electronic process: See  subpoenas and deadlines in the electronic process heading in comments to article 370 .

Jurisprudence

Imprisonment of the defendant cited by edict. Need for personal summons:  The defendant is arrested during the term of the subpoena by public notice of the conviction, this subpoena is impaired and must be carried out in person ( STJ, RHC 45.584/PR, Reporting Minister Nefi Cordeiro, judged on 5/3 /2016, DJe 12/5/2016 – Newsletter n. 583 ).

Personal summons from the Public Defender ’s  Office is only necessary if there is a request for oral support : , judgment on 13-9-2016, DJE of 5-10-2016 – Newsletter 839, Second Panel). 

 The absence of a personal subpoena from the Public Defender’s Office must be contested at the first procedural opportunity : -2016, DJE of 27-6-2016  – Bulletin 830, Second Panel).

The initial term for counting the deadline for challenging a decision to the Ombudsman’s Office is the date of delivery of the records to its division:  Summons of the Public Defender’s Office at a hearing. Deadline count. Start. Need to send the records to the institution. The date of delivery of the records to the Public Defender’s Office administrative division is the initial term for counting the period for contesting a judicial decision by the institution, regardless of the subpoena of the act at a hearing ( STJ, HC 296.759-RS, Reporting Min. Rogério Schietti Cruz , by majority, judged on 8/23/2017, DJe 9/21/2017 – Newsletter 611 ).

In the personal subpoena of the defendant about the sentence of pronouncement or conviction of the Jury, the absence of presentation of the term of appeal or the non-inquiry about his intention to appeal does not generate nullity of the act. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

RHC 061365/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/03/2016, DJE 03/14/2016

HC 248986/PR, Rel. Minister Nefi Cordeiro, judged on 03/03/2016, DJE 03/10/2016

HC 233133/ES, Rel. Minister Laurita Vaz, Fifth Panel, judged on 10/22/2013, DJE 11/05/2013

RHC 012853/SP, Rel. Minister Gilson Dipp, Fifth Panel, judged on 09/03/2002, DJ 10/14/2002

The decision that determines the dismissal of a process within the jurisdiction of the jury without a hearing of the defense is void (Precedent n. 712/STF). Source: jurisprudence in theses (STJ).

Judgments:

HC 293663/RJ, Rel. Minister Maria Thereza de Assis Moura, judged on 12/16/2014, DJE 02/03/2015

HC 301116/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 10/21/2014, DJE 10/29/2014

HC 265880/MA, Rel. Minister Laurita Vaz, Fifth Panel, judged on 02/04/2014, DJE 02/17/2014

HC 247770/MA, Rel. Justice Marilza Maynard (TJ/SE Judge), Fifth Panel, judged on 08/27/2013, DJE 09/13/2013

HC 062915/RS, Rel. Minister NILSON NAVES, judged on 06/12/2007, DJ 11/19/2007

HC 043138/PI, Rel. Justice Gilson Dipp, Fifth Panel, judged on 10/11/2005, DJ 11/07/2005

The nullity arising from the lack of subpoena – either personally or by official diary – of the date of judgment of the appeal cannot be argued at any time, subject to the temporal preclusion. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 310908/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/18/2016, DJE 08/26/2016

HC 176265/SP, Rel. Minister Nefi Cordeiro, judged on 02/02/2016, DJE 02/15/2016

HC 319774/SP, Rel. Justice Ericson Maranho (TJ/SP Judge), judged on 11/24/2015, DJE 12/07/2015

HC 320492/SP, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 08/20/2015, DJE 09/01/2015

AgRg no HC 293555/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 05/26/2015, DJE 06/09/2015

HC 300008/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 02/03/2015, DJE 02/11/2015

See also the journals (updated to date of publication):

Jurisprudence Information No. 0504, published on September 19, 2012.

The dative defender who expressly declines the prerogative regarding the personal subpoena of procedural acts cannot argue nullity when the communication occurs through the official press. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 341445/SP, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 05/19/2016, DJE 05/30/2016

HC 344094/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 04/26/2016, DJE 05/02/2016

HC 331432/SP, Rel. Minister Ericson Maranho (TJ/SP Judge), judged on 03/08/2016, DJE 03/21/2016

HC 334161/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 02/16/2016, DJE 02/24/2016

HC 316173/SP, Rel. Minister Sebastião Reis Júnior, judged on 06/09/2015, DJE 07/01/2015

See also the journals (updated to date of publication):

Jurisprudence Information No. 0560, published on May 3, 2015.

The absence of subpoena from the defense regarding the issuance of a precatoria to hear a witness is a cause of relative nullity. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 345949/RS, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 06/28/2016, DJE 08/01/2016

HC 340327/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 03/03/2016, DJE 03/10/2016

HC 146374/MT, Rel. Justice Nefi Cordeiro, judged on 03/01/2016, DJE 03/09/2016

AgRg in AREsp 700925/PR, Rel. Minister Rogerio Schietti Cruz, judged on 12/15/2015, DJE 02/02/2016

HC 310014/RJ, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 09/22/2015, DJE 09/29/2015

See also the journals (updated to date of publication):

Jurisprudence Information No. 0479, published on July 1, 2011.

Hypothesis in which the lack of a personal subpoena of the dative defender does not generate recognition of nullity:  The subpoena of the dative defender only by the official press does not imply recognition of nullity if he has expressly opted for this modality of communication of procedural acts, declining the prerogative of being summoned personally ( STJ, HC 311.676-SP, Judge Jorge Mussi, judged on 4/16/2015, DJe 4/29/2015 – Newsletter 560 ). 

The absence of a personal subpoena from the Public Defender’s Office or the dative defender about the acts of the process generates, as a rule, its nullity. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 310908/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/18/2016, DJE 08/26/2016

HC 355769/PR, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/04/2016, DJE 08/09/2016

HC 212710/SP, Rel. Minister Rogerio Schietti Cruz, judged on 05/10/2016, DJE 05/19/2016

HC 334626/SP, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 05/05/2016, DJE 05/16/2016

AgInt no REsp 1270317/ES, Rel. Justice Sebastião Reis Júnior, judged on 05/05/2016, DJE 05/18/2016

HC 340076/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 03/17/2016, DJE 03/29/2016

See also the journals (updated to date of publication):

Jurisprudence Information No. 0560, published on May 3, 2015.

defense deficiency

https://youtube.com/watch?v=IV1jeqD_s9k%3Ffeature%3Doembed

Nullity due to absence and deficiency of the defense: It is not enough for the defendant to have an attorney. The defense cannot be merely formal. It is essential that it be effective, under penalty of nullity of the process. CF requires full defense. Poor defense is not broad defense. The disinterested defense fulfills an aesthetic, formal function, it is a mere ornament. The defender has the duty, except for a justifiable reason, to attend all acts of the process and to use all means of defense provided for in the procedural law. Lack of offering prior defense, list of witnesses, absence at the instruction hearing, final reasons, silence in the questioning of witnesses, absence or superficiality of final allegations, failure to file an appeal characterize the non-compliance with the constitutional guarantees of full defense and adversary proceedings , which entails absolute nullity. In the face of poor defence, it is up to the judge to remove the desidious defender, in order to avoid the nullity of the process. Oarticle 497, item V , establishes that the judge must appoint a defender to the accused when he considers him defenseless, in which case he may dissolve the Council and designate a new day for the trial, with the appointment or constitution of a new defender. 

Deficiency of defense and proof of prejudice: The absence of defense constitutes absolute nullity. The deficiency of defense, when accentuated, is equivalent to the absence of defense, and in this case the nullity is absolute. If the deficiency is not serious, nullity is relative. It does not depend on a timely argument, as it is not to be expected that the defense alleges its own deficiency. If it is demonstrated that the defense deficiency (relative nullity) did not cause harm, there is no nullity. The wording of STF Precedent 523 is not good. She says: “In criminal proceedings, the lack of defense constitutes absolute nullity, but its deficiency will only annul it if there is proof of harm to the defendant.” As explained in the title Re-reading of article 563 of the CPP, Gustavo Badoró and direct and remote damages, in comments to article 563 , if there is nullity, it must be decreed, unless the judge demonstrates that there is no damage (this proof is only valid for relative nullity), a hypothesis that rules out the very existence of nullity. Whether it seems that the best wording for Precedent 523 would be in criminal proceedings, the lack of defense constitutes absolute nullity, but its deficiency will only annul it if the absence of damage cannot be demonstrated.

Requirement of substantiated manifestations of the defense: According to the sole paragraph of article 261 , the technical defense, when carried out by a public or dative defender, will always be exercised through a substantiated manifestation.

Deficient defense in the Jury Court: It is the responsibility of the presiding judge of the Jury Court to appoint a defender to the accused when he considers him defenseless, being able, in this case, to dissolve the Council and designate a new day for the trial, with the appointment or constitution of a new defender ( article 497, item V ).

Jurisprudence

Once the inertia of the lawyer constituted to present the reasons for the criminal appeal has been verified, the defendant must be summoned to appoint a new attorney, before proceeding with the appointment of a defender to exercise the contradictory. Source: jurisprudence in theses (STJ).

Judgments:

HC 302586/RN, Rel. Minister Rogerio Schietti Cruz, judged on 05/10/2016, DJE 05/19/2016

HC 345873/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 04/19/2016, DJE 04/29/2016

HC 301099/AM, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 03/01/2016, DJE 03/07/2016

HC 269912/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 11/03/2015, DJE 11/12/2015

RHC 025736/MS, Rel. Minister Nefi Cordeiro, judged on 06/09/2015, DJE 08/03/2015

AgRg no HC 179776/ES, Rel. Minister Sebastião Reis Júnior, judged on 05/13/2014, DJE 06/02/2014

defense enclosure

Defense restriction: The defense restriction directly violates the constitutional principle of ample defense. Defense restriction is the restriction of the rights of the defense. There will be restrictions on the rights of the defense, for example: if the party is not heard about the evidence in the file; if the floor is not given to the defense for the questioning of witnesses; when defense questions were unjustifiably rejected in the cross-examinations; when defense requests are unreasonably denied; when the defendant who does not have one is missing a defender; when there is no summons from the defender or the accused for a procedural act that must be carried out in his presence.

Knowledge by the lawyer of the content of the pre-procedural investigation:  This is the wording of  Binding Precedent 14 of the STF : “It is the defender’s right, in the interest of the defendant, to have broad access to the evidence that, already documented in an investigative procedure carried out by a body with judicial police competence, concern the exercise of the right of defense ”  .

Immunities and rights of lawyers: See heading Immunities and rights of lawyers in comments on Article 261 .

Jurisprudence

Once the inertia of the lawyer constituted to present the reasons for the criminal appeal has been verified, the defendant must be summoned to appoint a new attorney, before proceeding with the appointment of a defender to exercise the contradictory. Source: jurisprudence in theses (STJ).

Judgments:

HC 302586/RN, Rel. Minister Rogerio Schietti Cruz, judged on 05/10/2016, DJE 05/19/2016

HC 345873/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 04/19/2016, DJE 04/29/2016

HC 301099/AM, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 03/01/2016, DJE 03/07/2016

HC 269912/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 11/03/2015, DJE 11/12/2015

RHC 025736/MS, Rel. Minister Nefi Cordeiro, judged on 06/09/2015, DJE 08/03/2015

AgRg no HC 179776/ES, Rel. Minister Sebastião Reis Júnior, judged on 05/13/2014, DJE 06/02/2014

See also the journals (updated to date of publication):

Jurisprudence Information No. 0506, published on October 17, 2012.

There is no restriction of defense when the decision rejecting the hearing of witnesses residing in another country is duly substantiated. Source: Jurisprudence in theses (STJ).

Judgments:

RHC 100406/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/21/2018, DJE 08/29/2018

AgRg no REsp 1589291/PB, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 06/05/2018, DJE 06/13/2018

AgRg on RHC 088461/RS, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 11/14/2017, DJE 11/21/2017

RHC 078273/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/16/2017, DJE 05/31/2017

RHC 042954/PE, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 10/20/2016, DJE 11/11/2016

REsp 947565/PR, Rel. Minister Arnaldo Esteves Lima, Fifth Panel, judged on 08/25/2009, DJE 08/02/2010

Access to the complete data obtained in compliance with the search warrant: after the search and seizure is carried out, although the report on the result of the diligence is restricted to the elements related to the facts under investigation, the defense must be assured access to the complete data obtained in compliance with the court order ( RHC 114.683/RJ , Reporting Judge Rogério Schietti Cruz, Sixth Panel, unanimously, judged on 04/13/2021).

Intervention by the Public Ministry

https://youtube.com/watch?v=BL7cIrCqRTM%3Ffeature%3Doembed

Subsidiary public and private criminal action: For the purposes of processing and judging crimes subject to public action, two types of action are appropriate: public criminal action and subsidiary private criminal action. The public criminal action ( article 24 ), conditioned or unconditional, is the action brought by the Public Prosecutor’s Office through denunciation in the crimes of public action. The subsidiary private criminal action ( article 29) is filed by the offended party in public action crimes, through a complaint, when the MP does not file a complaint within the legal period. Although the subsidiary action is initiated by a private act, the official body of the prosecution must intervene in all terms of the process, amending the complaint, repudiating it, offering a substitute complaint and resuming the action as the main part in the case of negligence by the plaintiff. Both in public criminal action and in subsidiary private action, the intervention of the MP is necessary in all terms of the action.

Nullity: The non-intervention of the MP, in all terms of the action brought by him – or in those brought by the offended party –, entails nullity of the process (article 564, III, “d”), because it violates the accusatory and contradictory principles.

Absolute and relative nullity: While the MP’s non-intervention in the terms of the action brought by him generates absolute nullity, the nullity resulting from the MP’s non-intervention in the terms of the action brought by means of a complaint is relative, since according to article 572 , the nullities provided for in art. 564, III, letters “d” and “e”, second part, depend on timely argument. The expression second part contained in Article 572 refers to both the letter “d” and the letter “e”.

Non-argument of nullity by the defense: The presence of the prosecutor is in the interest of both the defense and the prosecution. Absent the prosecutor in the act of collecting evidence (relevant evidence), nullity is not relative, but absolute. It does not depend on whether the defense argues nullity during the hearing. The absence of the prosecutor creates conditions for the judge to assume his role, exchanging his chair for that of the accuser, in accumulation of functions. As it is incumbent upon the Public Prosecutor’s Office to prosecute the criminal action ( article 129, item I of the CF ), its absence in the act of collecting evidence implies a violation of the accusatory principle. Also contradictory. It matters little whether the judge asks the witness questions before or after the defense. In one case or another, he may become inquisitive.

Absence of final reasons from the Public Prosecutor’s Office: If the prosecution does not present grounds for appeal, the magistrate must – recognizing the nullity of the appeal filed and seeking, subsequently, to remedy the process –, grant a new deadline to the prosecution for the reasons to be offered. If the reasons are not presented again, the appeal must be inadmissible, as it lacks the existence requirement. On this subject, see the heading Reasons and counterarguments in comments on Article 593 .

Doctrine

Ígor Araújo de Arruda:  Hearing of criminal instruction without a prosecution body and the “impartial protagonism ”. Anadep.

Jurisprudence

Prosecutor’s absence from hearing. Defense silence on the fact. Preclusion:  The fact that, in an instruction hearing, the magistrate – after registering the absence of the representative of the Public Prosecutor’s Office (who, even summoned, did not appear) – complements the questioning of the witnesses carried out by the defense, without the defender has protested at the opportune moment or shown effective prejudice ( Resp 1.348.978-SC, Reporting Min. Rogerio Schietti Cruz, Reporting Judge for judgment Min. Nefi Cordeiro, judged on 12/17/2015, DJe 2/17/ 2016 – Newsletter n. 577 ). There are decisions to the contrary: REsp n. 1,259,482/RS .

Jurisprudence

Theme 959. Repetitive. Counting of deadlines for the Public Prosecutor’s Office:  Need to send the records to the institution. For the Public Prosecutor’s Office, the initial term for counting the period to challenge a judicial decision is the date of delivery of the records to the administrative division of the body, it being irrelevant whether the personal subpoena was given at a hearing, at a notary’s office or by warrant ( REsp 1.349 935-SE, Reporting Justice Rogério Schietti Cruz, Third Section, by majority, judged on 8/23/2017, DJe 9/14/2017. Item 959. Newsletter 611 ).

Quote

https://youtube.com/watch?v=_t1fRhTtTTI%3Ffeature%3Doembed

Fundamentals of the right to summons:  Summons are the right of the accused. It stems from  article 5, item LV of the CF , which guarantees the defendants  the contradictory and ample defense, with the means and resources inherent therein . Pursuant to article 8, letter “B”, of the Pact of San José, Costa Rica, the “prior and detailed communication to the accused of the accusation formulated” constitutes a judicial guarantee.

Constitutional basis for the right to be cited: See comments on Article 351 .

Nullity of citation: See comments to Article 351 .

There is no nullity if the party appears spontaneously: See article 570 .

Citation of the incapable and injustice in the application of a security measure: See comments to article 351 .

Contents and Nullities of the Writ of Summons : See comments to article 352 .

Content of the writ: In comments to article 354 .

Requirements of the act of summons by the Court Official: In comments to article 357 .

Summons from the military and notification to appear at the hearing: In comments to article 358 .

Service of Public Servant and Notice to Appear at Hearing: In Comments on Article 359 .

Quote from arrested defendant: In comments to Article 360 .

Bailiff’s Public Faith and Exhaustion of Means to Summon Personally: In Comments on Article 361 .

Timestamp: In comments to Article 362 .

Contents of the citation notice: In comments to article 365 .

Null citation does not suspend prescription: See this same title in comments to Article 366 .

Accused who is arrested or who appears must be interrogated: In comments to article 367 .

Accused in default and summons of sentence: In comments to article 367 .

Citation by letter rogatory: In comments to Article 368 .

Jurisprudence

Absence of the defendant in the proceedings:  Even if the defendant has appointed a lawyer before the filing of the complaint – on the date of arrest in flagrante delicto – and the patron has acted, by determination of the Judge, throughout the criminal investigation, the criminal action is void who has convicted the defendant without his presence, who was not summoned or personally attended any act of the proceeding, with no unequivocal proof that he became aware of the complaint ( REsp 1.580.435-GO, Reporting Judge Rogerio Schietti Cruz, judged on 3/17/2016, DJe 3/31/2016 – Newsletter n. 580 ).

Questioning

https://youtube.com/watch?v=nKxZr3Etvrg%3Ffeature%3Doembed

Defendant present: Failure to interrogate the defendant present generates nullity of the process (article 564, III, “e”). A defendant is considered present: the notified defendant who appears; the defendant who appears spontaneously; and the defendant arrested. Nullity is absolute. Article 572 does not apply . This article provides for the sanity of art. 564, III, “and”, second part. The “second part” of letter “e” of article 564, item III, starts from the third comma, thus addressing only: and the deadlines granted to the prosecution and defense.

Obligation to allow interrogation: See this same title in comments to Article 185 .

Addition of the complaint and new interrogation: See this same title in comments to Article 185 .

Arrested defendant: See this same title in comments to Article 185 .

Videoconference: See this same title in comments to Article 185 .

The prior interview with the defendant and the mandatory presence of a defender: See this same title in comments on article 185 .

Order of questions, dismissal of impertinent questions and intermediation of the judge: See this same title in comments to article 188.

The presence of the defenders, the defendant, the co-defendant and accused whistleblower: See this same title in comments to article 188 .

If there is more than one defendant, the interrogation is carried out separately: See this same title in comments on article 191 .

Questioning who does not speak the national language: See this same title in comments to article 193 .

Interrogation as the last act of the hearing: See heading Interrogation as the last act of gathering evidence in comments on Article 400 .

Jurisprudence

The lack of communication to the accused about the right to remain silent is a cause of relative nullity, the recognition of which depends on proof of damage. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ) .

Judgments:

AgInt no AREsp 917470/SC, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/02/2016, DJE 08/10/2016

RHC 067730/PE, Rel. Minister Jorge Mussi, Fifth Panel, judged on 04/26/2016, DJE 05/04/2016

HC 348104/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 04/05/2016, DJE 04/15/2016

HC 328448/SC, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/27/2015, DJE 11/11/2015

HC 320876/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 08/06/2015, DJE 09/01/2015

HC 295176/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/21/2015, DJE 06/11/2015

Interrogation of the accused as the last act to be carried out: It is unnecessary to prove damage for the recognition of nullity resulting from non-compliance with the rite provided for in art. 400 of the Code of Criminal Procedure, which determines that the interrogation of the accused is the last act to be carried out ( REsp 1.808.389-AM , Reporting Min. Rogerio Schietti Cruz, Sixth Panel, by majority, judged on 10/20/ 2020, DJe 11/23/2020).

The terms of the parties

https://youtube.com/watch?v=udo4i54jF7g%3Ffeature%3Doembed

Nullity due to non-granting and reduction of deadlines: Both the non-granting of deadlines, for the defense or the prosecution, as well as the shortening of these deadlines, are causes of nullity. Thus, by way of example, if a legal deadline for manifestation in the records is reduced, there will be nullity; if in the Jury’s Plenary the deadlines for oral debates are shortened, there will be nullity pursuant to article 564, item III, letter “e”.

Nullity is relative: Article 564, item III, letter “e” is divided as follows: the summons of the defendant to see himself prosecuted; his interrogation when present (first); and the time limits given to the prosecution and defense . The second part begins with the additive coordinating conjunction “and”. Therefore, pursuant to Article 572 , the non-granting of deadlines is remedied if it is not opportunely argued, that is, it is a relative nullity.

Failure to grant a deadline does not always constitute relative nullity:The subtraction of term does not always give rise to nullity based on article 564, item III, letter “e”. The hypothesis of curtailment of defense may be present, when, then, the nullity is based on letter “c” of article 564, item III. In case of lack of notification of sentence and order that can be appealed, nullity is foreseen in letter “o” of article 564, item III. In this way, if the judge, for example, cumulatively, does not subpoena the defender regarding the evidence that enters the file, for the questioning of a witness and for the presentation of the final allegations, the nullity will not occur based on the letter “e” of item III of article 564, but in the letter “c”. If there is no notice of the sentence from which an appeal is due, the procedural defect is not based on letter “e” of item III of art. 564, III, but in the letter “o”.

Subpoenas and deadlines in the electronic process: See this same title in comments to article 370 .

Applications of service of process rules to subpoenas: See this same heading in comments to Article 370 .

How procedural deadlines start and run: See this same title in comments to Article 370 .

Double deadlines for the Public Defender: See this subheading under the heading The Public Defender’s Office in comments to Article 261 .

Appeal petition, deadline and order of receipt: See title Appeal which is not followed up within the legal deadlines in comments to article 275 .

Pronunciation

https://youtube.com/watch?v=0OaoMV0MWX8%3Ffeature%3Doembed

Grounds for pronunciation and non-pronunciation: The grounds for pronunciation and non-pronunciation are outlined in Articles 413, 414 and 415. These devices must be examined together. An isolated reading of Article 413 may give the impression that convincing as to the materiality and existence of evidence of authorship is enough to pronounce. Conviction must be related to the existence of a crime in its triple composition (typicality, anti-legality and culpability) and to authorship.

Purpose of the pronouncement: It does not decide the dispute, but rather establishes the viability of the accusatory thesis. Its purpose is to refer the case to the jury. The magistrate, in the pronunciation, cannot value the decision-making alternatives. While the pronunciation recognizes the right to accuse, it limits this right. Establishes the ceiling of the charge. 

Essential elements of pronunciation: Essential elements of pronunciation are the device, the motivation and the authenticating part. It is the device of the incriminating criminal law, in which the magistrate considers the defendant to be incurring, which limits the accusation. If the magistrate considers the defendant to be subject to article 121, caput, of the Penal Code, the Public Prosecution Service cannot transfer the accusation to the criminal type described in paragraph 2 of this provision (qualified homicide), under penalty of nullity. The pronunciation must contain the motivation. This motivation is restricted to examining the possibility of the occurrence of a typical criminal act described in an incriminating norm and the existence of evidence of authorship. The grounds for the indictment must be limited to indicating the materiality of the fact and the sufficient evidence of authorship, and the judge must declare the legal provision in which he judges the accused to be subject, specifying the qualifying circumstances and the causes for the increase in sentence. Therefore, it is not up to the judge to make inquiries about the personality of the defendant, the intensity of the intent and the aggravating and mitigating circumstances.

Nullity of pronouncement due to lack of motivation: According to art. 564, III, letter “f” of the CPP, the lack of pronunciation generates the nullity of the process. Pronunciation motivation is mandatory. It concerns the existence of the crime and the evidence of authorship. When pronouncing the accused for qualified homicide, without motivating the qualifier, there is nullity. Qualified homicide is a different criminal type from simple homicide.

Nullity of the eloquent pronouncement: Void is still the pronouncement that, instead of establishing the admissibility content of the accusatory thesis, establishes a judgment of certainty, either through eloquence, with the use of strong expressions, or through a detailed examination of the existing evidence, with adoption of the accusatory theses. Nullity is absolute. There is prior judgment, not pronunciation. The pronunciation shifts from its ends, harming the defense. This jurisprudential understanding is old: “Nullity. Since the judge of the pronunciation issued a value judgment regarding the evidence, concluding that one of the defendant’s statements does not correspond to the truth, which serves as a basis for his defense, null is the piece whose true purpose was only to admit the viability of the accusatory thesis ” (RJTJRGS 75/55 – Judge Marco Aurélio Oliveira).

Jurisprudence

Annulment of the pronouncement due to excessive language:  Recognized excess of language in the pronouncement sentence or in the confirmatory judgment, the decision and the consecutive procedural acts must be annulled, determining that another one be pronounced, being inappropriate to impose only the removal and envelopamento ( AgRg in REsp 1.442.002-AL, Reporting Justice Sebastião Reis Júnior, judged on 4/28/2015, DJe 5/6/2015 – Newsletter 561 ).

Once the excess of language in the pronunciation is verified, it is annulled:  Once the excess of language in the pronunciation is verified, it is annulled or that of the judgment that incurred in the mentioned defect. Recognizing the insubsistence of the pronouncement sentence or the judgment confirming it, due to excessive language, the only solution contemplated in the legal system is its annulment, with the delivery of another decision ( RHC 127.522, rel. min. Marco Aurélio, judgment on 18- 8-2015, judgment published in the DJE of 27-10-2015  – Bulletin 795, First Panel).

Pronunciation and absence of the term of appeal or waiver : In the personal subpoena of the accused regarding the sentence of pronouncement, the absence of presentation of the term of appeal or waiver does not generate nullity of the act ( STJ, RHC 61.365-SP, Rapporteur Min. Felix Fischer, judged on 3/3/2016, DJe 3/14/2016 – Newsletter n. 579 ). 

In the personal subpoena of the defendant about the pronouncement or conviction, the absence of presentation of the term of appeal or the non-inquiry about his intention to appeal does not generate nullity of the act. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

RHC 066863/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 04/26/2016, DJE 05/02/2016

HC 248986/PR, Rel. Minister Nefi Cordeiro, judged on 03/03/2016, DJE 03/10/2016

RHC 061365/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/03/2016, DJE 03/14/2016

HC 188248/PR, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/27/2015, DJE 11/09/2015

RHC 034476/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/02/2014, DJE 09/10/2014

HC 233133/ES, Rel. Minister Laurita Vaz, Fifth Panel, judged on 10/22/2013, DJE 11/05/2013

See also the journals (updated to date of publication):

Jurisprudence Information No. 0579, published on April 19, 2016.

Nullities existing in the pronunciation decision must be argued at the appropriate time and through the appropriate appeal, under penalty of estoppel. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

AgRg on RHC 065111/BA, Rel. Minister Sebastião Reis Júnior, judged on 04/19/2016, DJE 05/03/2016

HC 346587/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 04/12/2016, DJE 04/22/2016

RHC 037749/PE, Rel. Minister Nefi Cordeiro, judged on 03/10/2016, DJE 03/17/2016

RHC 058491/MG, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 09/15/2015, DJE 09/23/2015

See also the journals (updated to date of publication):

Jurisprudence Information No. 0377, published on November 21, 2008.

Summons of the accused for trial in the Jury Plenary

https://youtube.com/watch?v=FGY9AJymvZI%3Ffeature%3Doembed

Nullity due to lack of subpoena: In the wording of this provision, item III, letter “g”, there will be nullity if the defendant is not subpoenaed for the trial session by the Jury Court. It is the defendant’s lack of subpoena that causes nullity, not failure to comply with the subpoena. Once subpoenaed, appearing or not, the trial will take place. This is what article 457 provides , as amended by Law No. 11,689, of 2008, which prescribes that the trial will not be postponed due to the non-attendance of the released accused, the assistant or the plaintiff’s lawyer, who has been regularly summoned . According to paragraph 1 of article 457, requests for postponement and justifications for non-attendance must be, unless there is evidence of force majeure, previously submitted to the appreciation of the presiding judge of the Jury’s Court. If the lawyer does not appear, an “ad hoc” defender cannot be appointed for the trial, as preparation for the trial in Plenary requires deep prior study.

Accused arrested: If the accused is arrested, paragraph 2 of article 457 imposes his conduction. If it is not conducted, the trial will be postponed, unless there is a waiver request signed by him and his lawyer.

Nullity is relative: According to article 564, item III, letter “g”, combined with article 572 , nullity due to lack of subpoena of the defendant for the trial session, by the Jury Court, is relative. It is remedied if it is not accused in a timely manner or if the accused appears spontaneously.

Notification of Enlisted Witnesses

https://youtube.com/watch?v=Eq-6anBwIFI%3Ffeature%3Doembed

Nullity due to lack of notification: The letter “h” of item III of article 564 provides for nullity due to lack of subpoena of the witnesses listed in the libel and the contrariety . The libel and opposition were extinguished by the advent of Law n. 11,689, of 2008. According to the new wording of article 422 , upon receiving the records, the president of the Jury Court will determine the subpoena of the public prosecutor’s office and the defender, so that, within 5 (five) days, they present a list of witnesses who will testify in plenary, up to a maximum of 5 (five), at which time they will be able to gather documents and request diligences. The absence of subpoena referred to in article 422 implies nullity.

Non-appearance of the witness: If the witness, without just cause, fails to appear, the presiding judge – without prejudice to criminal action for disobedience – is authorized to apply the fine provided for in § 2 of art. 436 ( Article 458 ). The trial will not be postponed if the witness fails to appear, unless one of the parties has requested that he be summoned by warrant, at the opportunity referred to in article 422, declaring that he does not dispense with the testimony and indicating his location ( article 461). If, summoned, the witness does not appear, the presiding judge will suspend the proceedings and order the witness to be conducted, or postpone the trial to the first free day, ordering it to be conducted (paragraph 1 of article 461). The trial will be carried out in the event that the witness cannot be found at the indicated place, if so certified by a court official (paragraph 2 of article 461).

Relative nullity: Failure to subpoena the listed witness constitutes relative nullity, pursuant to article 572 . It is remedied if it is not accused in the session itself or even if the witness appears spontaneously.

Minimum presence of 15 jurors for the constitution of the jury

https://youtube.com/watch?v=m9m9BJy62uk%3Ffeature%3Doembed

Minimum presence of 15 jurors at the opening of the session: If 15 jurors appear from the 21 drawn in the jury trial session, the presiding judge will declare the work in progress ( article 463). If there are not 15 jurors, the trial will be postponed, proceeding with the drawing of as many substitutes as necessary, and with the designation of a new date for the jury session. The opening of the session and the constitution of the jury with less than 15 jurors entails nullity, according to article 564, item III, letter “i”. If, among the 15 jurors present, six are unreasonably rejected by the parties and two others declare themselves prevented or suspected of participating in the case, will the trial take place? Yes. There are seven left and this is the legal number of the Sentencing Council. What if, as a result of suspicions, impediments, incompatibilities, dismissals and refusals, the legal number for the constitution of the Judgment Council is not completed? The trial will be postponed (article 471); if not, there will be the nullity referred to in this article 564, III, letter “j”.

Drawing of Jurors for the Judgment and Incommunicability Council

https://youtube.com/watch?v=LRa-XAGADMQ%3Ffeature%3Doembed

Drawing of jurors for the Judgment Council :Articles 467 to 469 regulate the drawing of jurors for the formation of the Sentencing Council. Verifying that the ballots relating to the jurors present are in the ballot box, the presiding judge will raffle 7 (seven) among them for the formation of the Sentencing Council. As the ballots are removed from the ballot box, the presiding judge will read them followed by the defense and, after this, the Public Ministry. Any one of them may refuse the drawn jurors, up to 3 (three) each party, without giving reasons for refusal. The jury rejected without reason by any of the parties will be excluded from that instruction and judgment session, proceeding with the draw for the composition of the Judgment Council with the remaining jurors. If there are 2 (two) or more defendants, the refusals may be made by a single defender. The separation of the judgments will only occur if, due to the refusals, the minimum number of 7 (seven) jurors is not obtained to compose the Judgment Council. Having determined the separation of judgments, the accused to whom the authorship of the fact was attributed will be judged first or, in case of co-authorship, the preference criterion set forth in thearticle 429 . If the claim of impediment of suspicion or incompatibility against the presiding judge of the Jury Court, Public Prosecutor’s Office, juror or any employee is rejected, the trial will not be suspended. However, the grounds and decision must be included in the minutes. If, as a result of the impediment, suspicion, incompatibility, dismissal or refusal, there is no number for the formation of the Council, the judgment will be postponed to the first free day, after drawing the alternates, in compliance with the provisions of article 464 .

Drawing and nullity: The failure to draw the jurors of the Judgment Council in a legal number entails nullity (article 564, item III, letter “j”). The judge cannot arbitrarily decide who will or will not participate in the Sentencing Council. There will also be nullity if the judge, when removing the ballots from the ballot box, does not give the opportunity for the defense or for the prosecution to refuse the jury drawn. The lack of the legal number also generates nullity. If the council is formed by six jurors, or even by eight or nine, the nullity is manifest.

Juror who worked in a previous trial: According to Precedent 206 of the STF , a subsequent trial by the jury with the participation of a juror who worked in a previous trial of the same case is void.

Incommunicability: Before drawing lots of members of the Judgment Council, the presiding judge will clarify the impediments, suspicion and incompatibilities contained in articles 448 and 449 . On that occasion, the presiding judge will also warn the jurors that, once drawn, they will not be able to communicate with each other and with others, nor express their opinion on the process, under penalty of exclusion from the Council and a fine, in the form of § o of art. 436 of this Code ( article 466 and its paragraphs ).

Incommunicability and nullity:The lack of warning by itself does not entail nullity. There will only be nullity if the jurors effectively communicate. There is no legal provision for nullity for lack of warning, but for breach of incommunicability. Espínola Filho argues that incommunicability is not an absolute condition, but a relative one, and depends on the president’s assessment of its effects (ESPÍNOLA FILHO, Eduardo. Code of Brazilian penal procedure annotated. 5. ed. Rio de Janeiro: 1976). In any case, if there is communication, the judge must immediately intervene, interrupting it. It is not just verbal communication that must be restricted. If the juror, in the course of the support, be it the defense or the prosecution, keeps shaking his head as if denying the value of the sustained thesis, and thus influencing the conviction of the others, it is up to the magistrate to warn him. The incommunicability required of the juror does not apply to his communication with the judge; this one is cool.

The questions

https://youtube.com/watch?v=m9m9BJy62uk%3Ffeature%3Doembed

Missing and deficient questions: According to the present article 564, item III, letter “k”, the jury’s judgment will be null and void when the questions and the respective answers are missing . It is not just the effective lack of questions that causes nullity. There are other cases. Among others, his disability, non-compliance with the pronunciation, disobedience to his order and the contradiction of answers. See articles 482 and 483.

Opportunity to argue nullity: After the president reads the questions, he will ask the parties if they have an application or complaint to make. On that occasion , the party must argue any irregularity ( article 484 ). Depending on the hypothesis, the non-claim at this stage may jeopardize a subsequent claim of nullity.

Reference: On the wording of the questions, see comments on article 483 .

Precedents

Precedent 156 of the STF : The nullity of the trial, by the jury, due to the lack of a mandatory requirement is absolute.

Precedent 162 of the STF : The nullity of the trial by the jury is absolute, when the questions of the defense do not precede those of the aggravating circumstances.

Jurisprudence

Question presented to the sentencing council. Absence of nullity:  The addition of the expression “for what he heard in Plenary Session” to the general question of acquittal (“Does the jury acquit the accused?”) provided for in art. 483, § 2, of the CPP ( HC 123.307/AL, rel. Min. Gilmar Mendes, judged on 9-9-2014, judgment published in the DJE of 9-30-2014  – Newsletter 758, Second Panel). – QUESTIONS

Need to close the vote if the jurors answer affirmatively to the question regarding the acquittal of the accused:  Raising self-defense as the only defensive thesis before the Judgment Council, if more than three jurors answer affirmatively to the third question – “Does the jury acquit the accused? ” –, the Presiding Judge of the Jury’s Court must close the trial and conclude for the acquittal of the defendant, not being able to submit to a vote the item on any intentional excess alleged by the prosecution ( HC 190.264-PB, Reporting Min. Laurita Vaz, judged on 26 / 8/2014 – Bulletin No. 545 ).

Contradiction between the answers to the questions in the Jury Court:  It is up to the Chief Judge of the Jury Court, when recognizing the existence of a contradiction between the answers to the formulated questions, to submit to a new vote all the questions that prove to be antagonistic, and not just the one that presented an incongruous result ( REsp 1.320.713-SP, Reporting Min. Laurita Vaz, judged on 5/27/2014 – Newsletter No. 542 ).

Main defensive thesis:  The absolute thesis of legitimate defense, when it constitutes the main defensive thesis, must be asked to the Judgment Council before the subsidiary thesis of disqualification due to the absence of animus necandi ( REsp 1.509.504-SP, Rel. Min. Maria Thereza de Assis Moura, judged on 10/27/2015, DJe 11/13/2015 – Newsletter 573 ).

The nullity of the judgment, by the jury, is absolute due to the lack of a mandatory requirement (Precedent n. 156/STF). Source: jurisprudence in theses (STJ).

Judgments:

AgRg in REsp 1113349/MS, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 06/28/2016, DJE 08/01/2016

HC 352330/PB, Rel. Minister Jorge Mussi, Fifth Panel, judged on 06/28/2016, DJE 08/01/2016

HC 273255/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 09/16/2014, DJE 09/25/2014

HC 232236/SP, Rel. Minister Laurita Vaz, Fifth Panel, judged on 05/28/2013, DJE 06/06/2013

HC 254568/PB, Rel. Minister Sebastião Reis Júnior, judged on 03/12/2013, DJE 03/19/2013

HC 202190/DF, Rel. Minister Gilson Dipp, Fifth Panel, judged on 06/14/2011, DJE 07/01/2011

After the modifications in the rite of the Jury Court introduced by Law n. 11.689/2008, the generic requirement of acquittal (article 483, III, of the CPP) cannot be considered contradictory in relation to the recognition of the authorship and materiality of the crime. Source: jurisprudence in theses (STJ).

Judgments:

HC 196966/ES, Rel. Justice Joel Ilan Paciornik, Fifth Panel, judged on 10/06/2016, DJE 10/17/2016

AgInt no REsp 1457251/SC, Rel. Justice Sebastião Reis Júnior, judged on 06/28/2016, DJE 08/03/2016

AgRg in REsp 1490467/DF, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 05/24/2016, DJE 06/01/2016

AgRg in REsp 1215688/DF, Rel. Minister Nefi Cordeiro, judged on 10/13/2015, DJE 11/03/2015

AgRg in REsp 1384546/PE, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 09/01/2015, DJE 09/10/2015

HC 154700/SP, Rel. Minister Rogerio Schietti Cruz, judged on 11/18/2014, DJE 12/05/2014

The judgment is void when the questions are presented with bad wording or when they are formulated in a complex way, to the point of causing perplexity or making it difficult for the judges to understand. Source: jurisprudence in theses (STJ).

Judgments:

REsp 1425154/DF, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/09/2016, DJE 08/17/2016

HC 143653/GO, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 08/25/2015, DJE 09/11/2015

HC 053512/MG, Rel. Minister Nefi Cordeiro, judged on 03/19/2015, DJE 03/27/2015

AgRg in REsp 1316076/PE, Rel. Minister Laurita Vaz, Fifth Panel, judged on 12/03/2013, DJE 12/19/2013

HC 054279/PI, Rel. Minister PAULO MEDINA, judged on 09/05/2006, DJ 06/04/2007

HC 044021/MG, Rel. Minister Gilson Dipp, Rapporteur for Judgment Minister Laurita Vaz, Fifth Panel, judged on 04/11/2006, DJ 06/19/2006

Possible irregularities in the question must be raised after the questions have been read and the criteria explained by the presiding judge, under penalty of preclusion (article 571, item VIII, of the CPP). Source: jurisprudence in theses (STJ).

Judgments:

AgRg in AREsp 1027611/PI, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/21/2017, DJE 02/24/2017

AgInt no REsp 1477914/MG, Rel. Minister Nefi Cordeiro, judged on 12/13/2016, DJE 12/19/2016

REsp 1589018/ES, Rel. Minister Sebastião Reis Júnior, judged on 11/10/2016, DJE 11/25/2016

HC 339030/PB, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/23/2016, DJE 08/31/2016

HC 217865/RJ, Rel. Minister Rogerio Schietti Cruz, judged on 05/17/2016, DJE 05/24/2016

AgRg in AREsp 665385/PR, Rel. Minister Maria Thereza de Assis Moura, judged on 04/07/2015, DJE 04/13/2015

Defense and prosecution at trial session

https://youtube.com/watch?v=y-ULOnxKy-c%3Flist%3DPL0AnXtDtBETwEG9AkmiJOMK9P9UglXuWw

Accusation of the defense in the trial session: According to letter “l” of item III of the device under examination, the trial carried out by the Jury Court in which the prosecution or the defense was absent is null and void. This lack is not only related to the physical absence of the prosecutor or defender, it is also the lack of the acts of accusing and defending. If the prosecutor or defender is not present in the plenary session of the jury, the judge must postpone the trial ( articles 455 and 456). There will be a lack of prosecution if the Prosecutor summarizes the accusatory thesis in a mere request for conviction devoid of any justification, or even if he withdraws from the plenary, interrupting the support of his thesis. There is no impediment for the Public Prosecutor’s Office, considering that there is insufficient evidence of authorship and/or crime, to request the acquittal of the accused, applying article 385 . After the accusation, the defender will have the floor for the production of the defense. The defense must be broad. If the defense proves to be unsatisfactory – not making use of essential arguments and evidence that are available in the case file –, if the defender lacks technical preparation, if he demonstrates that he is unaware of the process, or even if he is unable to develop the theses due to nervousness, it is up to the judge, based on thearticle 497, item V , close the judgment. The judge may, in such cases, to avoid embarrassment, limit himself to declaring the trial closed, informing that the reasons for this decision will be explained later in a reasoned decision.

The judgment must be fully recorded: In accordance with the provisions of paragraph 1 of article 405 , whenever possible, the recording of the testimonies of the investigated, accused, offended and witnesses will be done by means or resources of magnetic recording, stenotype, digital or technical similar, including audiovisual, aimed at obtaining greater fidelity of information . The law said less than it wanted. If it is useful and convenient to record the evidence, so are the debates. Ubi eaden ratio, ibi eaden juris dispositio– where there is the same reason for deciding, there must be the same provision of law. Facts that occurred during the debates often constitute grounds for appeal. If it is possible to leave the debates on record, so that the evidence of any incidents remains uncontested, there is no reason to justify the waiver of audiovisual recording of the entire trial. The aforementioned device determines that recording should be carried out whenever possible . Now, nowadays, with the advancement of technology and its availability, it is always possible.

Jurisprudence

Obligation to record instructional acts. Nullity: From the summary: “From the entry into force of Law n. 11.719/2008, the best exegesis of the legal provision that regulates the matter does not allow for any other interpretation, other than that the judge who has the means or resource for recording must, obligatorily, use it to record the testimonies of investigated, accused, victim, witness and even defendant. Exceptionally, in the face of a factual impediment, the magistrate may proceed to collect the testimonies through the traditional system, provided that he justifies the impossibility, without making the act illegal” ( Habeas corpus 428.511 – Minister Ribeiro Dantas – 2018 ) . In the same sense: RHC 68.922/SP – Rel. Minister FELIX FISCHER – 2017.

Eventual nullities that occurred in the Jury’s Plenary, resulting from impediment or suspicion of jurors, must be argued at the appropriate time, under penalty of estoppel. Source: jurisprudence in theses (STJ).

Judgments:

HC 208900/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/11/2016, DJE 11/08/2016

AgRg in REsp 1366851/MG, Rel. Minister Nefi Cordeiro, judged on 10/04/2016, DJE 10/17/2016

HC 342821/RO, Rel. Justice Felix Fischer, Fifth Panel, judged on 03/15/2016, DJE 04/01/2016

AgRg in REsp 1500980/RS, Rel. Minister Maria Thereza de Assis Moura, judged on 03/17/2015, DJE 03/24/2015

HC 139835/SP, Rel. Minister Campos Marques (Judge summoned from the TJ/PR), Fifth Panel, judged on 08/27/2013, DJE 09/02/2013

HC 167133/SC, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/27/2011, DJE 10/28/2011

Reference to the pronunciation decision during jury debates:  References or reading of the pronunciation decision during plenary debates of the jury court do not necessarily lead to the nullity of the judgment, which only occurs if the references are made as an argument of authority that benefit or harm the accused ( AgRg no REsp 1.235.899-MG, Reporting Min. Maria Thereza de Assis Moura, judged on 5/11/2013 – Newsletter No. 0531 ). 

Reference to the pronouncement decision during debates in the jury:  The simple reading of the pronouncement or other decisions that deemed the accusation admissible does not lead, by itself, to the nullity of the trial, which only occurs when mention of such procedural documents is made as an argument from authority, in order to harm the accused ( HC 248.617-MT, Reporting Justice Jorge Mussi, judged on 9/5/2013, DJe 9/17/2013 – Newsletter No. 0531 ).

The use of handcuffs must be an exceptional measure and their use in the plenary of the jury depends on a reasoned judicial decision, under penalty of configuring illegal constraint and annulment of the trial session. (SEE BINDING SUMMARY No. 11). Source: jurisprudence in theses (STJ).

Judgments:

HC 314781/SC, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 02/02/2017, DJE 02/10/2017

HC 323158/MS, Rel. Minister Nefi Cordeiro, judged on 03/17/2016, DJE 04/01/2016

HC 288116/MG, Rel. Minister Maria Thereza de Assis Moura, judged on 11/17/2015, DJE 11/30/2015

HC 287591/SP, Rel. Minister Sebastião Reis Júnior, judged on 04/14/2015, DJE 04/24/2015

HC 234684/SP, Rel. Minister Og Fernandes, judged on 08/20/2013, DJE 09/06/2013

HC 153121/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/23/2011, DJE 09/01/2011

The sentence

https://youtube.com/watch?v=8FeikrqzEm0%3Ffeature%3Doembed

Judgment nullities: See title Judgment content and nullity in comments on Article 381 .

Generalities: The criminal sentence itself is regulated by the Code of Criminal Procedure in articles 381 to 393. The sentence referred to in art. 564, III, “m”, can be acquittal or condemnatory. The absolute is either proper or improper. Condemnation is the one that upholds the punitive claim, inflicting punishment on the guilty person. Absolute is the one that dismisses the punitive claim. The ones referred to by art. 386 and its items. Improper is the one that acquits the defendant, imposing a security measure on him ( article 386, sole paragraph, item III). Calamandrei, cited by Tornaghi, states that the magistrate, developing the logical reasoning that presupposes the sentence, goes through the following steps: – preliminary examination of the transcendence of the fact (it is the verification of the typicality of the fact); – examination of the evidence of the facts; – legal qualification of the concrete fact (is the classification of the crime); – application of the right to the fact (TORNAGHI, Hélio. Institutions of criminal procedure, 2nd ed. São Paulo: Saraiva, 1977). The acquittal sentence is based on article 386, as long as it is recognized: the non-existence of the fact is proven; there is no proof of the existence of the fact; not constitute a criminal offense; it is proven that the defendant did not contribute to the criminal offence; there is no evidence that the defendant concurred for the criminal offense; there are circumstances that exclude the crime or exempt the defendant from punishment ( articles 20 , 21, 22, 23, 26 and § 1of article 28, all of the Penal Code), or even if there is a well-founded doubt about its existence; there is insufficient evidence to convict. The lack of a sentence leads to the nullity of the process (article 564, item III, letter “m”). The omission of certain formalities, such as the motivation, the report and the dispositive are equivalent to the lack of sentence. The judge can correct the sentence that contains ambiguity, contradiction, omission or obscurity, when the party so requests within the legal term ( article 382 ). This measure provided for in Article 382 is not a declaration of nullity. The judge cannot decree the nullity of a published sentence.

Distinction between null and unfair sentence:There will be nullity of the process in which the sentence is missing. The omission of certain structural elements (essential formalities or existence requirements) produce the same effect, nullity. Remo Pannain, quoted by Florêncio Abreu, observes that not all defects or vices of the sentence result in its nullity; only those that affect its constitution are of interest in matters of nullities. His teachings are transcribed: “The sentence exists, in fact and by law; it is perfect in its substantial and formal structure, as it has all the substantial and formal requirements; produces legal effects, which may become definitive by virtue of res judicata. Only in its content, which constitutes the decision, does it not correspond to justice. Vice and defect do not affect its constitution, its structure; the act exists, but it is not a good act, it is not a fair act, because the sentence that decides badly on the fact is neither good nor fair, vitiated by error, but which for that reason no one would dare to speak of nullity. Against erroneous decisions, and precisely because of this, means of appeal are established” (ABREU, Florêncio de. Comments on the Code of Criminal Procedure. Revista Forense: 1945). This contribution by Pannain can help in solving the problem regarding the nullity or not of the omitted sentence regarding mitigating and aggravating circumstances and probation. Comments on the Code of Criminal Procedure. Forensic Magazine: 1945). This contribution by Pannain can help in solving the problem regarding the nullity or not of the omitted sentence regarding mitigating and aggravating circumstances and probation. Comments on the Code of Criminal Procedure. Forensic Magazine: 1945). This contribution by Pannain can help in solving the problem regarding the nullity or not of the omitted sentence regarding mitigating and aggravating circumstances and probation.

Identification of parties and report: The judgment must contain the names of the parties or, when this is not possible, the information necessary to identify them. It does not necessarily need to contain the name, nationality, marital status and profession of the accused. The important thing is that, by the sentence, it is possible to identify him. The error or omission of the name in the sentence does not constitute nullity as long as the physical identity of the accused is certain. In this way, it is perfectly valid, for example, the sentence that contains the domicile of the accused in a determined address, with determined and described physical characteristics, son of a determined person. It is enough that the elements contained in the sentence are sufficient to identify the person being accused. Physical identification can be done by recording characteristics such as color, height, article 6, item VIII ). Still in the report, after the magistrate describes the important facts that occurred in the process (the report is the relevant history of the process, in the words of Pontes de Miranda), he starts to report and analyze the request, the presentation of the prosecution and the defense. Judgment without report is null (except in the special court, where the report is waived, according to  article 81, paragraph 3, of Law n. 9.099/95 ).

Exemption from the report in special courts:  In special courts it is not necessary to include the report in the sentence, pursuant to  article 81, paragraph 3 of Law n. 9,099/95 .

Motivation or rationale:  Article 381, III, determines that the judgment will contain the reasons in fact and in law on which the decision is based. The reasons in fact must be included, with examination and evaluation of the evidence, and the legal grounds on which the decision is based. In the explanatory memorandum of the CPP, Minister Francisco Campos notes that “the sentence must be motivated. With the system of relative judicial discretion in the application of the penalty, consecrated by the new Penal Code, and the free conviction of the judge, adopted by the present project, it is the motivation of the sentence that offers guarantee against excesses, errors of appreciation, failures of reasoning or logic or other defects of judgment”. The failure, in the sentence, the exposition of the reasons and foundations that led the judge to acquit or condemn results in its nullity, insofar as this deficiency implies damage to the principles of the adversarial system and full defense, since the party does not know what the reasons for the decision are, with a view to contradict them in any appeal. It also results in prejudice to the appellate principle, as the accused cannot appeal without knowing the reasons for the decision. Thus, when exposing the reasons for his conviction, the magistrate must examine the theses of the parties and explain the reasons why one of them is not complied with. Likewise, the setting of the penalty must be substantiated, under penalty of nullity. The CF is expressed by establishing that all judgments by the Judiciary bodies will be public, and all decisions will be substantiated, under penalty of nullity ( because the party does not know what the reasons for the decision are, with a view to contradicting them in an eventual appeal. It also results in prejudice to the appellate principle, as the accused cannot appeal without knowing the reasons for the decision. Thus, when exposing the reasons for his conviction, the magistrate must examine the theses of the parties and explain the reasons why one of them is not complied with. Likewise, the setting of the penalty must be substantiated, under penalty of nullity. The CF is expressed by establishing that all judgments by the Judiciary bodies will be public, and all decisions will be substantiated, under penalty of nullity ( because the party does not know what the reasons for the decision are, with a view to contradicting them in an eventual appeal. It also results in prejudice to the appellate principle, as the accused cannot appeal without knowing the reasons for the decision. Thus, when exposing the reasons for his conviction, the magistrate must examine the theses of the parties and explain the reasons why one of them is not complied with. Likewise, the setting of the penalty must be substantiated, under penalty of nullity. The CF is expressed by establishing that all judgments by the Judiciary bodies will be public, and all decisions will be substantiated, under penalty of nullity ( Thus, when exposing the reasons for his conviction, the magistrate must examine the theses of the parties and explain the reasons why one of them is not complied with. Likewise, the setting of the penalty must be substantiated, under penalty of nullity. The CF is expressed by establishing that all judgments by the Judiciary bodies will be public, and all decisions will be substantiated, under penalty of nullity ( Thus, when exposing the reasons for his conviction, the magistrate must examine the theses of the parties and explain the reasons why one of them is not complied with. Likewise, the setting of the penalty must be substantiated, under penalty of nullity. The CF is expressed by establishing that all judgments by the Judiciary bodies will be public, and all decisions will be substantiated, under penalty of nullity (article 93, item IX ). In inquisitive times, motivation was not mandatory. To condemn someone, it was enough for the judge to pronounce the formula  pour le cas resultant du procés . It was with the advent of the French Revolution and new liberal ideas that the law of October 8-9, 1789 made motivation mandatory (TOURINHO FILHO, Fernando da Costa. Penal process. 5. ed. Bauru: Jalovi, 1979). The lack of motivation is equivalent to the non-existence of the sentence. It generates absolute nullity. The lack of motivation is not to be confused with bad application of the law, contradiction of arguments and deficiency in the assessment of evidence. A simple reference to “undisputed evidence in the file” or to “the defendant’s default which resulted in the accusation being uncontested” does not satisfy the requirement of motivation.

The device:  The device is the part of the sentence in which the judge submits his conviction to the will of the law in order to judge the concrete case. It is the seat of judgment. This part of the sentence is called dispositive because it is in it that the judge decides on the case. This is where it should be stated whether the accused is convicted or acquitted. If convicted, it is necessary to mention the penal provision violated. If acquitted, the cause must be mentioned, the one contained in one of the items of  article 386, namely, to prove the non-existence of the fact; there is no proof of the existence of the fact; not constitute a criminal offense; it is proven that the defendant did not contribute to the criminal offence; there is no evidence that the defendant concurred for the criminal offense; and there are circumstances that exclude the crime or exempt the defendant from the penalty, or even if there is a well-founded doubt about its existence or there is not enough evidence for the conviction. Absent the conclusion, that is, if the accused is acquitted or convicted, nullity is also evident. In the case of conviction, absent the violated criminal provision, the sentence is also void.

The authenticating part:  Article 381 in its last item (item VI) refers to the date and signature of the judge. Once the sentence has been concluded, whether or not the claim has been accepted, the authenticating part follows. The lack of the date or the judge’s signature on the sentence generates the nullity of this piece.

Contradiction between the reasoning and the conclusion: Hélio Tornaghi explains that there is a contradiction when one simultaneously denies and affirms something about the same subject or the same object. The enunciation of two contradictory judgments leaves it uncertain which of the two is true. Contradictory propositions are not the same as contrary propositions. The former differ in quality and quantity; the others only in quality. These propositions are contradictory: 1) All men are just; 2) Some men are righteous. One of them is fake. In the example, the first one is false. The following propositions are contrary: 1) All men are truthful; 2) No man is truthful (TORNAGHI, Hélio. Institutions of criminal procedure, 2nd ed. São Paulo: Saraiva, 1977). The contradiction capable of generating nullity of the sentence is seen in a broad sense: that originating from the incompatibility between the motivation and the devices contained in the sentence. If there is a contradiction in the sentence, article 382 allows any of the parties, within a period of two days, to request the judge to declare it. If the party does not so request, nothing prevents the nullity of the sentence from being argued in the grounds of appeal. The contradiction between the motivation and the dispositive part of the sentence can occur in several hypotheses, for example: when the motivation revolves around a crime and the dispositive part condemns the defendant for another; when in the motivation it is for absolution and in the disposition it condemns; when he admits doubt and condemns; when he admits to committing a crime and acquits. If the party does not so request, nothing prevents the nullity of the sentence from being argued in the grounds of appeal. The contradiction between the motivation and the dispositive part of the sentence can occur in several hypotheses, for example: when the motivation revolves around a crime and the dispositive part condemns the defendant for another; when in the motivation it is for absolution and in the disposition it condemns; when he admits doubt and condemns; when he admits to committing a crime and acquits. If the party does not so request, nothing prevents the nullity of the sentence from being argued in the grounds of appeal. The contradiction between the motivation and the dispositive part of the sentence can occur in several hypotheses, for example: when the motivation revolves around a crime and the dispositive part condemns the defendant for another; when in the motivation it is for absolution and in the disposition it condemns; when he admits doubt and condemns; when he admits to committing a crime and acquits. when the motivation revolves around a crime and the operative part condemns the defendant for another; when in the motivation it is for absolution and in the disposition it condemns; when he admits doubt and condemns; when he admits to committing a crime and acquits. when the motivation revolves around a crime and the operative part condemns the defendant for another; when in the motivation it is for absolution and in the disposition it condemns; when he admits doubt and condemns; when he admits to committing a crime and acquits.

Conviction for facts described in the complaint:  See this same subheading under the heading  Principle of correlation between the complaint and the complaint  in comments on Article 383 .

New legal definition without the fact being described in the complaint: See this same title in comments on Article 384 .

Miscellaneous offenses provided for in special laws : About miscellaneous offenses provided for in special laws, see the heading  Crimes in general. Laws, doctrine and jurisprudence of interest , in comments to Article 5 .

Jurisprudence

Absence of dissenting vote. Nullity:  The absence of a dissenting vote when the judgment was published constitutes an illegal constraint, due to violation of the ample defense, ( HC 118.344/GO, rel. min. Gilmar Mendes, judged on 3/18/2014, judgment published in the DJE of 16- 6-2014  – Newsletter 739, Second Panel).

Limits to the grounds per relationem:  The judgment that limits itself to ratifying the judgment and adopting the ministerial opinion, without even transcribing them, is null and void, failing to rule out defensive theses or to present its own grounds ( STJ, HC 214.049-SP, Rapporteur from Justice Nefi Cordeiro, Reporter for judgment of Justice Maria Thereza de Assis Moura, judged on 2/5/2015, DJe 3/10/2015 – Newsletter 557 ).

official appeal

https://youtube.com/watch?v=EihUyzDNQQ8%3Ffeature%3Doembed

Effects, ex-officio appeal and admissibility judgment: See this same title in comments on article 574 .

The decision does not become final when an ex-officio appeal is omitted: The necessary appeal is one whose filing is required by law. The lack of the necessary resource is of no relevance when replaced by the parties’ resource (the voluntary). Neither the process nor the sentence is null due to the lack of the necessary remedy; only, the decision does not become final (the effects of the sentence do not acquire the characteristic of immutability). In this sense, Precedent 423 of the STF : “The sentence does not become final for having omitted an ex officio appeal , which is considered to be filed ex lege.”. “This nullity only affects acts subsequent to the decision, which was illegally given as final and unappealable, which are a consequence of or dependence on it, since the sentence itself is not invalidated by the lack of an ex officio appeal . We go back, until the moment of publication of this sentence, to be prosecuted, precisely against it, the same that the judge was responsible for ex officio, doing it, then” (ESPÍNOLA FILHO, Eduardo. Code of Brazilian penal procedure annotated 5. ed. Rio de Janeiro: 1976). Still on the matter, Precedent 160 of the STF : “The decision of the Court that upholds, against the defendant, nullity not argued in the prosecution’s appeal is void, except for cases of ex-officio appeal”.

Subpoenas

Nullity due to lack of subpoena: The process is void when the subpoena is missing, under the conditions established by law, for acknowledgment of sentences and orders that may be appealed (article 564, item III, letter “o”).

If the interested party attends, there is no nullity: See article 570 .

Subpoenas and deadlines in the electronic process: See this same title in comments to article 370 .

Applications of service of process rules to subpoenas: See this same heading in comments to Article 370 .

Subpoena of procedural acts by the defender, the Public Ministry and others: See this same title in comments to article 370 .

Subpoena in special courts: See this same title in comments to article 370 .

Summons of the judgment of the defender and the accused: See this same title in comments to article 392 .

Jurisprudence

Initial term of the period for the MP to appeal:  When the Public Prosecutor’s Office is summoned personally in a notary, giving notice in the records, its appeal period will start on that date, and not on the day the records are sent to its administrative department (EREsp 1.347.303 -GO, Reporting Minister Gurgel de Faria, judged on 12/10/2014, DJe 12/17/2014 – Newsletter 554 ).

Legal quorum for judgment in the courts

Quorum for trial: A trial held by any court without the legal quorum (article 564, III, letter “p”) is void. Quorum is the minimum number of judges required by law for the body to function. It is normally the bylaws of the respective Court that determines the legal quorum . The legal number is only obtained after excluding the impeded judges.

Jurisprudence

The judgment of appeal by a fractional court composed mostly of summoned judges does not violate the constitutional principle of the natural judge. Source: jurisprudence in theses (STJ).

Judgments:

HC 324371/RN, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 05/19/2016, DJE 05/27/2016

HC 179502/SP, Rel. Minister Nefi Cordeiro, judged on 02/16/2016, DJE 02/25/2016

HC 165280/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 11/25/2014, DJE 12/03/2014

HC 271742/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 08/26/2014, DJE 09/05/2014

AgRg in HC 280115/PA, Rel. Minister Laurita Vaz, Fifth Panel, judged on 08/26/2014, DJE 09/02/2014

HC 236784/MA, Rel. Minister Og Fernandes, judged on 11/21/2013, DJE 03/17/2014

Omission of essential formality

Relative nullity: The omission of a formality that constitutes an essential element of the act generates relative nullity, as provided for in the caput of article 572 . See heading Relative nullity in comments to article 563 .

Jurisprudence

The questioning of witnesses by the Judge before the parties are given the opportunity to formulate the questions, with the inversion of the order foreseen in article 212 of the Code of Criminal Procedure, constitutes relative nullity. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 159885/SP, Rel. Minister Rogerio Schietti Cruz, judged on 06/21/2016, DJE 07/01/2016

HC 295979/RS, Rel. Minister Nefi Cordeiro, judged on 06/14/2016, DJE 06/22/2016

AgRg in AREsp 885644/RS, Rel. Minister Maria Thereza de Assis Moura, judged on 06/02/2016, DJE 06/14/2016

AgRg in REsp 1545129/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 05/24/2016, DJE 06/01/2016

HC 341534/SC, Rel. Justice Ericson Maranho (TJ/SP Judge), judged on 04/05/2016, DJE 04/19/2016

HC 339946/RS, Rel. Minister Jorge Mussi, Fifth Panel, judged on 04/07/2016, DJE 04/13/2016

See also the journals (updated to date of publication):

Jurisprudence Information No. 0577, published on March 22, 2016.

Need to assess the theses raised in the preliminary defense:  After the phase of presenting the response to the accusation, the magistrate, when issuing a decision that determines the continuation of the process, must at least allude to what was brought in the preliminary defense, not exempting himself from the task of facing relevant and urgent procedural issues ( STJ, HC 46.127-MG, Reporting Minister Maria Thereza de Assis Moura, judged on 2/12/2015, DJe 2/25/2015 – Newsletter 556 ).

The absence of offering final allegations in proceedings under the jurisdiction of the Jury Court does not entail nullity, since the indictment decision ends a provisional judgment about the guilt. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 347371/PE, Rel. Minister Nefi Cordeiro, judged on 06/14/2016, DJE 06/22/2016

AgRg in REsp 1356402/PE, Rel. Minister Assusete Magalhães, judged on 09/05/2013, DJE 07/01/2014

AgRg in AREsp 480148/PE, Rel. Justice Moura Ribeiro, Fifth Panel, judged on 06/10/2014, DJE 06/17/2014

REsp 1373259/SC, Rel. Justice Sebastião Reis Júnior, judged on 12/10/2013, DJE 04/24/2014

HC 224208/SP, Rel. Minister Marilza Maynard (TJ/SE Judge), judged on 03/20/2014, DJE 04/10/2014

HC 221805/SE, Rel. Minister Laurita Vaz, Fifth Panel, judged on 02/18/2014, DJE 03/05/2014

See also the journals (updated to date of publication):

Jurisprudence Information No. 0399, published on June 19, 2009.

It is related to the nullity resulting from the non-compliance with the criminal competence for prevention (Precedent n. 706/STF). Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 305387/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/18/2016, DJE 08/24/2016

HC 301757/SP, Rel. Justice Reynaldo Soares da Fonseca, Fifth Panel, judged on 06/07/2016, DJE 06/13/2016

HC 264140/SP, Rel. Minister Rogerio Schietti Cruz, judged on 04/26/2016, DJE 05/02/2016

HC 207983/SP, Rel. Minister Nefi Cordeiro, judged on 10/20/2015, DJE 11/06/2015

HC 261664/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 09/15/2015, DJE 09/30/2015

HC 294628/AM, Rel. Minister Felix Fischer, Fifth Panel, judged on 11/18/2014, DJE 11/27/2014

The inversion of the order foreseen in article 400 of the CPP, which deals with the interrogation and hearing of witnesses for the prosecution and defense, does not constitute nullity when the act is carried out by letter rogatory, the issuance of which does not suspend the criminal process. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

AgRg on RMS 048000/SP, Rel. Justice Felix Fischer, Fifth Panel, judged on 08/09/2016, DJE 08/26/2016

HC 159885/SP, Rel. Minister Rogerio Schietti Cruz, judged on 06/21/2016, DJE 07/01/2016

RHC 059448/RS, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 06/07/2016, DJE 06/17/2016

RHC 057455/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 04/26/2016, DJE 05/02/2016

HC 313050/BA, Rel. Minister Nefi Cordeiro, judged on 03/08/2016, DJE 03/15/2016

HC 340815/MT, Rel. Minister Maria Thereza de Assis Moura, judged on 02/02/2016, DJE 02/23/2016

The initiation of a police inquiry prior to the final constitution of the tax credit is not cause for nullity of the criminal action, if it is evidenced that the tax was constituted before its filing. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 269546/SP, Rel. Minister Nefi Cordeiro, judged on 05/03/2016, DJE 05/12/2016

RHC 028621/CE, Rel. Minister Sebastião Reis Júnior, judged on 02/18/2016, DJE 03/08/2016

Translation of documents only if necessary:  ​​The translation into the vernacular of documents in a foreign language should only be carried out if such measure becomes absolutely “necessary” ( Inq 4.146, rel. min. Teori Zavascki, judgment on 6-22-2016 , DJE of 5-10-2016  – Newsletter 831, Plenary).

It is not admitted, in the HC, the examination of nullity not argued in due time:  It is not admitted, in the seat of habeas corpus, the examination of nullity not argued in due time before the final and unappealable decision of the original action or the criminal review (RHC 124.041, original rel. min. Dias Toffoli, red. for the deputy min. Roberto Barroso, judgment on 8/30/2016, DJE of 12/1/2016 – Bulletin 837, First Panel).  

Incident of forgery. Document attached more than ten years ago. Preclusion: Appeal after judgment. There is no nullity in the decision that rejects the request for an incident of falsehood referring to the evidence added to the file for more than 10 years and against which the defense protests only after the passing of the condemnatory criminal sentence, since the claim is precluded (…) although there is no deadline defined by law for requesting the initiation of the incident of document falsity provided for in art. 145 et seq. of the Code of Criminal Procedure, the fact is that the official letter issued by the Federal Police that granted the said procedure, accompanied by the respective CD, was added to the case file more than ten years ago (…) the permission of the behavior under analysis would represent a violation the principles of legal certainty, reasonableness, procedural loyalty and objective good faith,STJ, RHC 79.834-RJ, Rapporteur Min. Felix Fischer, unanimously, judged on 11/07/2017, DJe 11/10/2017 – Newsletter 615 ).

Decision without reasons

Absence of grounds: The absence of grounds for the decision results in its nullity. As provided in  article 93, item IX of the CF , “all judgments by the bodies of the Judiciary Power will be public, and all decisions will be substantiated, under penalty of nullity (…)”.

Jurisprudence

Need for concrete and individualized grounds for the imposition of precautionary measures provided for in article 319 of the CPP:  Proper grounds — concrete and individualized — are required for the imposition of any of the alternative measures to imprisonment provided for in article 319 of the CPP. This is because these precautionary measures, although more beneficial, represent a constraint on individual freedom ( HC 231.817 SP, Justice Judge Jorge Mussi, judged on 4/23/2013 – Newsletter No. 0521 ).

Need to substantiate a decision that determines invasive data access procedures:  A decision that, without justification, determines access to bank, telephone and air transport company data is null and void, even if the procedures were requested with the aim of verifying the regular compliance with a penalty restricting rights (Resp 1.133.877-PR, Judge Nefi Cordeiro, judged on 8/19/2014 – Newsletter No. 545).

Fim

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