Art. 252. The judge may not exercise jurisdiction in proceedings in which:
I – your spouse or relative, by blood or affinity, has worked in a direct or collateral line up to the third degree, including, as a defender or lawyer, public prosecutor’s office, police authority , auxiliary of justice or expert;
II – he himself has performed any of these functions or served as a witness;
III – has functioned as a judge of another instance, pronouncing itself, in fact or in law, on the matter;
IV – he himself or his spouse or relative, consanguineous or related in a direct or collateral line up to the third degree, inclusive, is a party or directly interested in the deed.
Guarantee of the judge’s exemption: To ensure the judge’s impartiality, he cannot act in proceedings involving certain people with whom, it is presumed, he maintains a close relationship. It is the institute of impediment, in which partiality is presumed.
Judge who has worked in another instance: The judge that has worked in another instance is only impeded if he has “pronounced, in fact or in law, on the issue ”, which does not occur in the case of the judge who has participated in the production of evidence or that has limited itself to making orders seeking to move forward with the procedure.
No need for concomitant participation: The participation of the persons referred to in this device 252 need not be concomitant with the participation of the judge. It is enough, for the impediment to be configured, that the person has participated in the process at a certain stage.
Defender who is a relative of the judge: Article 267 states that “under the terms of article 252, the judge’s relatives shall not act as defenders”.
Kinship by affinity: Relatives by affinity are the relatives originated by marriage bond. When someone marries, their in-laws and in-laws become in-laws.
A judge who is aware of illicit evidence is impeded: Pursuant to article 157, paragraph 5, a judge who is aware of the content of the evidence declared inadmissible cannot issue a sentence or judgment. On this subject, see the heading The impediment to the instruction of the process and in the courts in comments to article 157.
Non-exactness: The doctrine has considered, based on the rule of the natural judge (which would be excepted by this device), that article 252 is exhaustive, not exemplary. We understand that no, that it is exemplary, thus authorizing the analogy. The principle of impartiality of the judge constitutes a major vector in the legal system. And the purpose of the impediment is to ensure impartiality. Therefore, being complementary to impartiality, the impediment is not exceptional, but an extension of the principle of this greater principle. This is not an exceptional rule, and therefore an analogy can be used.
Declaration in the records and exception of suspicion: 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 ( article 112 ).
Adriano Gouveia Lima : The breach of impartiality as a basis for an exception of suspicion . Legal Scope
Afrânio Silva Jardim: Adversarial procedural system, impartiality of judges and rule of law. Reflections. . Emporium of law.
Contact of circumstances in civil or administrative proceedings does not prevent a judge from acting in criminal proceedings: The judge of criminal proceedings – even if he or she has had contact with evidence or analyzed the circumstance from the perspective of administrative or civil proceedings – is not contaminated to carry out a jurisdictional analysis later, in which another legal framework will be applied with ample defense and contradictory ( HC 120.017/SP, rel. min. Dias Toffoli, judged on 5/27/2014, judgment published in the DJE of 8/8/2014 – Newsletter 748, First Class).
Magistrate who acted as magistrate in the administrative proceeding may conduct the appeal trial: The magistrate who acted as regional magistrate in an administrative proceeding brought against the appellant may conduct the appeal and habeas corpus judgment ( RHC 131.735, rel. min. Cármen Lúcia, trial on 5/3/2016, DJE of 5/17/2016 – Bulletin 824, Second Panel).
Causes of impediment and suspicion cannot be created with the interpretation: It is impossible to create, through the interpretation of causes, impediment and suspicion ( RHC 131.735, rel. min. Cármen Lúcia, judgment on 5-3-2016, DJE of 17- 5-2016 – Bulletin 824, Second Panel).
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).
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. Minister 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
Appraisal by the Minister of a special appeal and subsequent appraisal of another appeal related to the criminal review: There is no impediment or suspicion of members of the Collegiate of the STJ who appreciated a special appeal and, later, come to participate in the judgment of another rare appeal arising from a filed criminal review at origin ( AgRg on ExSusp 209-DF ), Rel. Min. Antonio Saldanha Palheiro, Third Section, unanimously, judged on 08/12/2020, DJe 08/17/2020).
Previous performance in the process of the judge’s father: The participation of a magistrate in a trial of a case in which his father had already acted is a cause of absolute nullity, provided for in art. 252, I, of the Code of Criminal Procedure ( HC 136.015 , rel. min. Ricardo Lewandowski, DJE of 5-18-2020).
Extension to jurors of the causes of impediment, suspicion and incompatibility of judges
Application to jurors: According to the provisions of article 448 , the following are prevented from serving on the same Board: I – husband and wife; II – ascending and descending; III – father-in-law and son-in-law or daughter-in-law; IV – brothers and brothers-in-law, during their marriage; V – uncle and nephew; VI – stepfather, stepmother or stepson. The same impediment will occur in relation to people who maintain a stable union recognized as a family entity. The provisions on impediments, suspicion and incompatibilities of judges will apply to jurors.
Juror who participated in the previous trial: STF Precedent 206 provides : “The subsequent trial by the Jury with the participation of a juror who worked in a previous trial of the same case is void”. See also jurisprudence subsequent to the publication of the Precedent .
Nullity in the face of the judge’s impediment: Article 564 , item I provides that the nullity will occur due to incompetence, suspicion or bribery of the judge. It is absolute nullity. Incurable. Procedural acts must all be renewed. The ultimate objective of the institute of nullities is to ensure the effectiveness of the general principles of criminal procedural law. If these principles are violated, in the case of the impartiality of the judge, the process is absolutely null.