Art. 251. The judge will be responsible for providing for the regularity of the process and maintaining order in the course of the respective acts, and may, for this purpose, request the public force.
Impartiality and independence of the judge
Judge’s impartiality: Impartiality and independence are notions integrated into the concept of justice. Justice that decides in love or sacrifices its position to extraneous interests is inconceivable. In the progress of the process and in the decisions that compose it, it is up to the judge to take into account only what is fair, and never the convenience for himself or for third parties. It is to strengthen the impartiality of the judge that the parties to the proceedings act with partiality (the principle of the partiality of the parties and the impartiality of the judge). In the inquisitive procedure, there were no proper bodies to exercise the function of accusing, defending and judging. In this procedure, the three functions were handed over to a single person. The inquisitor judge was in charge of exercising the three functions simultaneously. It was an impossible psychological task for the inquisitor to maintain the necessary impartiality to judge, after having been charged with promoting the prosecution and the defense. The principle of impartiality means a psychological state required of the judge at the beginning, in progress and in the final phase of the procedural activity. The impartial judge substitutes his prejudices and personal opinions for the will of the law; it does not allow itself to be influenced by the sympathy or intolerance of the parties. Also, the seriousness of the criminal hypothesis, object of the accusation, does not have enough power to divert him from the course of knowledge to the path of irrational judgment. Ensuring the impartiality of the judge, there are the procedural institutes of suspicion, impediment and bribery. While the first two generate a presumption of bias, from the latter results the certainty of partiality. There is the presumption of partiality when one of the parties is a capital enemy, close friend, creditor, debtor or spouse of the judge, as examples of some legal hypotheses. Suspicion and impediment, when present in the process, must be declared ex officio by the judge. If the latter, however, does not declare it, the parties are not left unprotected. The institute of nullities ensures the operation of the principle. Proceedings in which a judge was suspected, impeded or bribed is absolutely void. the parts are not unprotected. The institute of nullities ensures the operation of the principle. Proceedings in which a judge was suspected, impeded or bribed is absolutely void. the parts are not unprotected. The institute of nullities ensures the operation of the principle. Proceedings in which a judge was suspected, impeded or bribed is absolutely void.
Independence of the judge: The judge could not be required to be impartial in deciding, if independence were not granted and guaranteed to overcome pressures from the most varied origins that, not infrequently, are surprised knocking on the doors of the judicial house. Independence means that, when deciding, the magistrate is bound only by his conviction and the law. Nothing else influences his decision. The judge’s independence is safeguarded by constitutional guarantees: tenure, irremovability and irreducibility of salaries.
Judiciary and the defense of democracy: See title Crimes against the STF and its competence to investigate and arrest in comments to article 84.
Doctrine
Ada Pellegrini Grinover: Ethics, abuse of process and resistance to judicial orders: the contempt of court . s3.amazonaws.com.
Adriano Gouveia Lima : The breach of impartiality as a basis for an exception of suspicion . Legal Scope
Afrânio Silva Jardim: Freedom of the press. There can be no absolute rights in a true Democratic State of Law. Emporium of law.
Alexandre de Moraes: External control of the Judiciary – unconstitutionality . Senate
Afrânio Silva Jardim: Adversarial procedural system, impartiality of judges and rule of law. Reflections. . Emporium of law.
Alexandre de Moraes: External control of the Judiciary – unconstitutionality . senado.leg.br
André Turella Carpinelli : Hate speech and freedom of expression: permission, prohibition and criminalization in the current Western socio-political scenario . Law School. University of Lisbon.
Aline Pinheiro : Italian Chamber approves project that makes judges responsible . Conjure
Antonio Carlos Fonseca da Silva: The independence of the judiciary . fundacaopedrojorge.org.br
Carlos Bastide Horbach: What criteria should guide the choices for the US Supreme Court? The constitutionalists.
Cláudio Colnago: The Brazilian Paradox of Intolerance . The constitutionalists.
Celso de Mello : Interviewed by Mônica Bergamo. Never before has the media been so ostensible as to overwhelm a judge . The constitutionalists.
Celso Luiz Limongi : The function of the judge is to interpret and apply the law, all in a single operation . Conjure
Celso Limongi. The Judge and Courage . Crumbs.
Celso Luiz Limongi. Interview : “ It is easier to raise a building than to judge an action ”. Conjure
Celso Luiz Limongi. Slowness of Justice cannot be resolved with more judges . Conjure
Celso Luiz Limongi: Priscyla Costa and Rodrigo Haidar interview . Conjure
Celso Luiz Limongi. Suppressing rights does not contribute to reducing violence . Conjure
Cezar Peluso, retired minister of the STF, interview by Carlos Costa . Conjure
Fábio Konder Comparato: The Judiciary in Brazil . conteudo.imguol.com.br
Fernando Augusto Fernandes: Far from being diminished or extirpated, the fifth constitutional must be celebrated . Conjure
Flavio Meirelles Medeiros: The Operator of Law, Justice and the Crowd . Jusbrasil.
Gilmar Ferreira Mendes: Public Safety and Criminal Justice . The constitutionalists.
Gisela Gondin Ramos: The early burial of the CNJ . The constitutionalists.
Gustave LeBon. Crowd psychology. Delraux.
Gustavo Badaró: Right to trial by an impartial judge: how to ensure objective impartiality in the judge in systems where there is no function of the guarantee judge . Badaroadvogados .
José Joaquim Canotilho: “Problems are in the streets, not in the Constitution”. Interview by Alessandro Cristo and Márcio Chaer.Conjure
José Miguel Garcia Medina: Judges’ Crisis of Authority . The constitutionalists.
Lenio Streck: “Abandoning one’s will to judge is the cost of democracy”. Interview . Conjure
Luis Felipe Salomão: I know what you did last summer . The constitutionalists.
Luiz Flávio Borges D’Urso: In defense of the constitutional fifth . duraso.com.br.
Malu Delgado : What to expect from Dias Toffoli . The constitutionalists.
Marco Aurélio: “ I never exchanged stickers, and I will not.” Interview by Sylvio Costa and Edson Sardinha. The constitutionalists.
Ney Bello: Punishment as a Necessity: The Crossroads of Criminal Jurisdiction . Conjure
Ney Bello: The Brazilian criminal jurisdiction: proposals for the millennium . Conjure
Ney Bello: Seniority and merit are complementary criteria for promoting judges . Conjure
Ney Bello: … And the judges left Berlin . Jornalggn.com.br.
Ney Bello: … Judges and social networks: the inconsistency of the herd! Conjure
Patrícia Falcão Gandra : Countermajoritarian principle and separation of powers in the defense and promotion of fundamental rights . repository.ul.pt. 2017.
Pierpaolo Cruz Bottini: The Challenges of the National Council of Justice . Crumbs.
Raúl Zaffaroni, Argentine jurist: “The function of criminal law is to limit punitive power”. Interview by Marina Ito. Conjure
Ricardo Lewandowski: It is up to the three Powers to effectively curb abuses of authority . Conjure
Rodrigo Mariano Torquato Maia: Limits and affects to freedom of expression in Brazil and in Constitutional Portugal. repository.ul.pt. 2017.
Jurisprudence
Firmness of the magistrate and impartiality: The firmness of the presiding magistrate in conducting the trial does not necessarily entail the breach of impartiality of the jurors ( HC 694.450-SC , Judge Reynaldo Soares Da Fonseca, Fifth Panel, unanimously, judged on 05 /10/2021, DJe 10/08/2021).
Warranties and prohibitions
Judge’s guarantees: They are foreseen in article 95 of the CF. They are: I – tenure, which, in the first degree, will only be acquired after two years of exercise, the loss of office, during this period, depending on the decision of the court to which the judge is bound and, in other cases, on a court decision final and unappealable; II – irremovability, except for reasons of public interest, pursuant to article 93, VIII; III – irreducibility of subsidy, except for the provisions of articles 37, X and XI, 39, § 4, 150, II, 153, III, and 153, § 2, I (Wording provided by Constitutional Amendment No. 19, of 1998 )
Barriers to the judge: They are found in article 95, sole paragraph of the FC : I – exercising, even if on availability, another position or function, except for a teaching role; II – receive, for any reason or pretext, costs or participation in proceedings; III – engage in party-political activity. IV – receive, for whatever reason or pretext, assistance or contributions from individuals, public or private entities, with the exception of the exceptions provided for by law (Included by Constitutional Amendment No. 45, of 2004) ; V – to practice law in the court or tribunal from which he left, before three years have elapsed since his removal from office due to retirement or dismissal (Included by Constitutional Amendment No. 45, of 2004) .
Doctrine
Flavio Meirelles Medeiros: The Operator of Law, Justice and the Crowd . Jusbrasil.
Vladimir Passos de Freitas: The judge between the rigors of the profession and freedom of expression . Conjure
Jurisprudence
Powers of the rapporteur in an investigation against a magistrate: The continuation of the criminal investigation in which there was evidence of the commission of a crime by a magistrate does not depend on the deliberation of the special body of the competent court, it being up to the rapporteur to whom the investigation was distributed to determine the steps he deems appropriate ( HC 208.657-MG, Reporting Minister Maria Thereza de Assis Moura, judged on 4/22/2014 – Newsletter No. 540 ).
Powers
Powers of the judge: The magistrate has jurisdictional power and police power. The jurisdictional concerns the progress of the process, its regularity, its acts and its decisions. The purpose of the police is to maintain order. The police of hearings and sessions is the responsibility of the respective judges or the president of the court, chamber, or panel, who will be able to determine what is convenient for the maintenance of order. For this purpose, they will request public force, which will be exclusively at their disposal ( article 794 ). Article 497lists the powers of the President of the Jury Court. All the powers provided for the procedure of the Jury are applicable, by analogy, to all hearings that the judge presides over. The powers are the following: I – regulate the police of the sessions and arrest the disobedient ones; II – request the aid of the public force, which will remain under its exclusive authority; III – direct the debates, intervening in case of abuse, excess of language or upon request of one of the parties; IV – resolve incident issues that do not depend on the jury’s pronouncement; V – appoint a defender to the accused, when he considers him helpless, 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; VI – order the defendant to be removed from the room if he or she makes it difficult for the trial to take place, which will proceed without your presence; VII – suspend the session for the time necessary to carry out the steps required or understood to be necessary, maintaining the incommunicability of the jurors; VIII – interrupt the session for a reasonable time, to pronounce sentence and for rest or meal of the jurors; IX – to decide, ex officio, after hearing the Public Prosecutor’s Office and the defense, or at the request of any of them, the allegation of extinction of criminal liability; X – resolve legal issues raised in the course of the trial; XI – to determine, ex officio or at the request of the parties or any juror, the measures intended to remedy nullity or to remedy a lack that jeopardizes the clarification of the truth; XII – to regulate, during debates, the intervention of one of the parties, when the other has the floor,
Maintaining the regularity of the process: According to the device now being studied, it is up to the judge to “provide for the regularity of the process and maintain order in the course of the respective acts”. While the maintenance of order concerns the police power of the magistrate, with the regularity of the process, judicial provision is sought. Defective procedural acts must be ratified or renewed ( article 573 ).
Principle of the natural judge: It is stipulated in article 5, item XXXVII, of the CF : “there will be no exception court or court”.
Doctrine
Afrânio Silva Jardim: Freedom of the press. There can be no absolute rights in a true Democratic State of Law. Emporium of law.
Carlos Renan Rodrigues da Silveira: The protection of the right to a fair trial in criminal matters: an approach to the guarantees that make up the right to a fair trial from a perspective based on international law . Law School. University of Lisbon
Damásio de Jesus : To Be a Judge by Law . Legal Content
Fátima Nancy Andrighi: Ethics in the magistratur. stj.jus.br
Fátima Nancy Andrighi: My pre-understanding of the act of judging . bdjur.stj.jus.br
Guilherme Nucci: Bad Faith in Criminal Procedure in Harmony with the New CPC . William Nucci
Humberto Eustáquio Soares Martins: The magistrate’s procedures and ethics . stj.jus.br
Humberto Eustáquio Soares Martins: Independence and Judicial Activism: Current Challenges . stj.jus.br
Humberto Eustáquio Soares Martins: The magistrate’s conduct on social networks . stj.jus.br
Marcelo Galli : Judicial activism is dangerous and causes insecurity , interview with Minister Antonio Saldanha Palheiro . Conjure
Ricardo Lewandowski: Protagonism of the Judiciary is a passing phenomenon (interview) . stj.jus.br
Ricardo Lewandowski: The International Criminal Court: From a Culture of Impunity to a Culture of Accountability . scielo.br
Sérgio Rodas : Celso de Mello has faced authoritarianism since he was a prosecutor during the dictatorship . Conjure
Taís Schilling Ferraz: Engineering by competences: an important reference in the training of magistrates . bdjur.stj.jus.br
The National Council of Justice (CNJ)
Jurisprudence
No need to exhaust the ordinary channels for the CNJ to act : It is unnecessary to exhaust the ordinary channels for the National Council of Justice (CNJ) to initiate a disciplinary review process ( MS 28.918 AgR/DF, rel. min. Dias Toffoli, judged on 4 -11-2014, decision published in the DJE of 21-11-2014 – Newsletter 766, First Panel).
Law no. 8.112/1990 can be applied in a subsidiary way in the face of omissions in Complementary Law 35/1979 (Loman): The subsidiary application of Law 8.112/1990 is possible in cases where Complementary Law 35/1979 (Loman) is silent ( MS 28.918 AgR/DF, Minister Dias Toffoli, judged on 4-11-2014, judgment published in the DJE of 21-11-2014 – Newsletter 766, First Panel).
Regulate the designation of an auxiliary judge to conduct investigations, by delegation from the CNJ, even if the investigated person is a federal magistrate : of the CNJ, even if the investigated person is a federal magistrate ( MS 28.513, rel. Min. Teori Zavascki, judgment on 9/15/2015, judgment published in the DJE of 9/28/2015 – Newsletter 799, Second Panel).
One-year period for the CNJ to act from the end of the disciplinary process of the internal affairs department: After the disciplinary process in progress in the local internal affairs department, the subsequent action carried out by the National Council of Justice (CNJ) is subject to the time limit of one year ( MS 32,724, rel. Dias Toffoli, judgment on 11-17-2015, judgment published in the DJE of 3-8-2016 – Newsletter 808, Second Panel).
CNJ and control of disputes submitted to the Judiciary: The National Council of Justice (CNJ) is not responsible for controlling disputes submitted to the Judiciary for consideration ( MS 28,845 rel. min. Marco Aurélio 1st Class DJE of 12-11-2017 Informativo STF 885 ).
The CNJ may exclude, as unconstitutional, the application of the law, determining compliance with this understanding: The powers constitutionally attributed to the National Council of Justice (CNJ) include the possibility of ruling out, as unconstitutional, the application of the law used as a basis for administrative act subject to control, determining that the bodies subject to its sphere of influence comply with this understanding, by express and formal act adopted by the absolute majority of the members of the Council ( Pet 4.656 rel. min. Cármen Lúcia Plenary DJE of 12-4-2017 Informative STF 851 ).
