Art. 112. The judge, the public prosecutor’s office, court clerks or 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 records. If there is no abstention, the incompatibility or impediment may be argued by the parties, following the procedure established for the exception of suspicion.
Incompatibility and impediments of the participants in the process
Suspicion and impediment: Cases of suspicion are described in article 254 of the CPP . Those of impediment in articles 252 and 253 . The prescriptions regarding the suspicion of judges extend to court clerks and officials, experts and interpreters (see this title Suspicion of experts, interpreters and clerks in comments on Article 105). If there is no abstention, that is, if the incompatibility or impediment is not spontaneously recognized, the impediment exception is applicable.
Impediment of the MP body: See comment to article 258 of the CPP.
Incompatibility and the position of Renato Brasileiro: Doctrine is far from agreed on the meaning of incompatibility. Criminal law does not clarify. The position of Renato Brasileiro, in comments to article 112 of the CPP, in the sense that incompatibility is a kind of suspicion for intimate reasons, seems to us the most convincing. His authoritative words follow: “As can be seen, due to the imprecision of the term in criminal proceedings, the truth is that, in practice, incompatibility has been treated as a kind of suspicion for reasons of intimate nature, whose conceptualization has a residual character, that is , covers everything that does not directly refer to the causes of suspicion or impediment, but that is capable of interfering with the impartiality of the magistrate (…). However, Code of Criminal Procedure Commented . 2nd. Ed. Publisher Juspodivm: 2017).
