Article 563 CPP – Loss as a requirement for the existence of nullity.

Art. 563. No act will be declared null if the nullity does not result in harm to the prosecution or the defense.

From article 563 to 573, when citing refer to: MEDEIROS, Flavio Meirelles. Code of Criminal Procedure Commented. https://flaviomeirellesmedeiros.com.br : 2019
or
Medeiros, Flavio Meirelles. Nullities of criminal procedure. Porto Alegre: Aide, 1987 .

Importance of Nullities

Importance of nullities: The CPP regulates nullities with eleven articles (articles 563 to 573). Only one of these, article 564 , says when there will be nullity; the other ten forecast when there will be no nullity, or when it cannot be declared, or how it is fixed. In the explanatory memorandum of the Code of Criminal Procedure there is mention of nullity looters. Commenting on the Code of Civil Procedure, Pontes de Miranda points out: “what surprises the reader of the Code is that, where it deals with nullities, the law is only concerned with precepts contrary to nullity” (Comments to the Code of Civil Procedure. 3rd edition: Editora Forense, 1997). Nullities are one of the most complex topics in procedural theory. Without them, the process is devoid of any guarantee. It ceases to be a procedural relationship, with reciprocal rights and duties, and becomes a mere procedure, a simple succession of acts. Nullities are the most important issue in criminal proceedings. Without a nullity sanction, there is no process, as there is no guarantee. It is with nullities that the effectiveness of fundamental principles of the process is safeguarded. Without sanctioning rule of nullity, constitutional principles such as ample defense, contradictory, impartiality and legality fall by the wayside. They lose their meaning and effectiveness. The scholar may have good knowledge of criminal law, procedural norms, general theory of criminal procedure, introduction to the study of law, constitutional law, but if he does not learn and master nullities, he does not know criminal procedure. In the absence of good knowledge of the systematics of this institute, the parties do not have the means to ensure their rights, and there is no judge who can safely preside and take the due process, the valid process, to the end. And the caveat: nullity is not restricted nor does it lend itself to aversion. Nullity is known and avoided. introduction to the study of law, constitutional law, but if you don’t learn and master nullities, you don’t know criminal procedure. In the absence of good knowledge of the systematics of this institute, the parties do not have the means to ensure their rights, and there is no judge who can safely preside and take the due process, the valid process, to the end. And the caveat: nullity is not restricted nor does it lend itself to aversion. Nullity is known and avoided. introduction to the study of law, constitutional law, but if you don’t learn and master nullities, you don’t know criminal procedure. In the absence of good knowledge of the systematics of this institute, the parties do not have the means to ensure their rights, and there is no judge who can safely preside and take the due process, the valid process, to the end. And the caveat: nullity is not restricted nor does it lend itself to aversion. Nullity is known and avoided. Nullity is not restricted nor does it lend itself to aversion. Nullity is known and avoided. Nullity is not restricted nor does it lend itself to aversion. Nullity is known and avoided.

Nullity and pedagogical effect:By omitting to apply sanctions for non-compliance with essential acts, the courts, composed of older and, presumably, more experienced judges, abdicate from exercising an important appeal function: the pedagogical one. When the court annuls the work carried out by the judge of first instance, there is in this decision, in addition to sanctioning content, pedagogical significance. The role of older judges is to guide younger judges to the exercise of criminal jurisdiction in compliance with the principle of due process. It falls to the most experienced – and age is one of the determinants of experience – to show the paths of duty. To abdicate this function is to ruin the future of criminal procedure. There are reasons for requiring seniority in filling vacancies in the courts. There are reasons why the elders have the last word.

Void process and loss

Construction of the criminal procedure:  Having established the principles of a Code of Procedure and, consequently, of a process, these principles will represent  the cornerstones  on which the rest of the structure of the process will be built. These stones, the fundamental ones, can never be removed. If they are, the process collapses, just as the circus collapses if the bases of its masts and masts are removed. If a stone happens to roll, this fact cannot be covered up, but revealed. The penalty cannot be applied in a process that is collapsing. The accused can only submit to punishment if the process is complete, that is, if its general principles are all firm, standing, unscathed and, consequently, the entire structure of the process is reliable. Constitutionally reliable and unsuspected. How do you recognize that a cornerstone has shifted and rolled away, that a principle has broken, that the framework is crumbling, that the process is partially or totally damaged? We answer step by step. The procedural principles obedient to the Federal Constitution adopted when planning a code become legal provisions. These devices will be fundamental, as they are legitimate representatives of those principles. They contain provision for procedural acts. These are the essential acts. The essential acts of the process (this notion is important) are those responsible for the effectiveness of the fundamental principles of criminal procedural law. The guarantees of the process consist of compliance with the principles ensured by these acts. Failure to carry out these acts, or carrying them out in violation of the law, entails the sanction of nullity. Therefore, it is the nullities that protect compliance with the principles and guarantees of the process. Without nullities there are no guarantees. 

Essential act. Effective non-existence and lack of existence requirement: In essence, an automobile is wheels, engine, brakes and steering. The rest is not essence. A building is foundations, floors, stairs or elevators and roof. A football match is two teams, a ball and two goalkeepers. If you take the wheels off the car, it doesn’t move, it ceases to be a car. The same happens if you remove the engine, brake or steering. A building without foundations, nor is erected, does not exist. Without floors, it is not a building. Ditto if you don’t have an elevator, or stairs, or a roof. It is a non-building. And a football match without a ball is not a football match, it’s a meeting between two teams. Without a goalkeeper or without a team it’s not a game. Under these conditions, the automobile, the building and the football match do not exist, they are null. Null is non-existent. Null means zero. Zero is what does not exist. Null is none, nothing. what does not exist it is what it lacks as a requirement for existence . The ball is a requirement for the existence of the game of football. The two teams are there, the goalkeepers, the fans, the referee, but there is no ball. There’s no game. There is no existence requirement for a football match. Lacking existence requirement, the soccer match itself does not exist. The essential act of the process which lacks the existence requirement does not exist.

Null or non-existent process: The process, in its interior, is a legal relationship. On the outside, a procedure. The procedure is composed of essential acts, such as a car, a building, a football match. Without its main pillars, it becomes a notary and bureaucratic process of acts with no meaning of a procedural legal relationship. Without its foundations, without its essential acts, it is a non-process. It’s a non-existent process. It is absolutely zero. Does not exist. The criminal process, without a complaint, does not exist. Without a defender, it doesn’t exist. Without a judge, there is no. Without questioning witnesses listed by the defense, it does not exist. No opportunity for interrogation, no. Without sentence, it does not exist. And, for the record, the absence of these acts does not necessarily mean their complete physical absence. It is enough that these acts lack existence requirements. The complaint may formally exist, but if it does not describe the fact imputed to the accused, it lacks the existence requirement. The complaint formally exists, but it does not exist legally.

Requirement to prove damage: The thesis that “in the case of nullity, proof of damage is essential” is symptomatic of the institute’s lack of knowledge. It manifests the merely instrumental conception (and one-sidedness of instrumentality) of the criminal process; untimely importation of civil procedural doctrine. The meaning of the criminal procedure as a guarantee of the individual is put aside. The weakening of the importance of the institute of nullities is an extremely serious matter, as it represents the decay of the guarantees of the criminal process in the face of the State’s excesses. The expression “effectiveness of criminal procedure” is yet another ideological import of civil procedure. It is forgotten that the effective criminal procedure is also the one that ensures the right to freedom of the innocent, since the Penal Code, where it is not an incriminating norm, is the criminal law of freedom. This is the case in the discriminating norms of illegality, culpability, in the causes for the extinction of punishment, in all “non-printed paper in ink of the special part”, that is, in the gaps between the criminal characteristics. All guarantees and fundamental rights of the accused, especially due process, are ensured by the nullity sanction. Criminal proceedings in which proof of impairment of nullity is required is a process with guarantee, but without sanction in case of non-compliance. That is, hollow warranty process; and more: the paradise of the prosecution and the inquisitor. An ornamental process. Only process externalization, pure procedure, empty, without content. The judge who does not recognize nullities replaces the code of procedure with a stamp approving inquiries. Proof of harm is a mistaken requirement,

Doctrine

Aury Lopes Jr:  Do the Inquiry’s nullities and illegalities contaminate the Criminal Procedure?  Conjure

Aury Lopes Jr: “A la carte” nullity system needs to be overcome in criminal proceedings . Conjure  

Elias Mattar Assad:  Procedural delinquency.  attribunamt.com.br

Identifying the damage and impossibility of your proof

Loss of quantity or quality of evidence: At the end of the procedural instruction, the parties will have what we can call evidence collection (or evidence). It is based on it that they will elaborate their theses of fact and law, and the judge will then judge. This collection will contain more than one thesis. It contains indications and contraindications. The greater the quantity and good quality of the material collected, the better. Good quality means trustworthiness, reliability. Quantity, trustworthiness and reliability are the qualities expected of a good and valid collection. Valid, because if it is addicted to nullity, it will lack quantity, reliability and reliability. It is precisely the lack of these properties that is called  “damage” . O damage is the loss of quantity or quality of the body of evidence resulting from the lack of an act or procedural formality. The damage concerns the consequences of these missing acts or formalities, which cease to be produced as a result of the lack. In a case instructed by an absolutely incompetent judge (by a judge other than the natural judge), is there reliability in the body of evidence resulting from the instruction? What is the reliability of the collection in which the suspected expert worked in the process? Are the quantity and quality of the collection in which the negligent defender acted sufficient? As the accused was not given the opportunity to interrogate, what is the quantitative and qualitative damage to the body of evidence? What was the damage to the collection in the process in which the questioning of in-person witnesses listed by the parties was unreasonably denied? And in what was the judge suspected or impeded and did not refrain from judging? Or where the unimputable lacked a healer? If the damage is in the body of evidence, how can you prove it? We will see these questions in the next title.

Impossible proof of damage:  Nullity is omission. Being an omission of an essential act or an essential formality of an essential act, it is impossible to conclude, commonly, by the absence of prejudice. This would only be feasible if the process of the omitted act was compared with the process of the performed act. Now, this, in the real world, is impractical. This concrete unfeasibility leaves in doubt as to the existence of damage. In 1982, we already explained the reasons for the impossibility of proving the prejudice of nullities in most cases, and why this proof should be waived: “It turns out that nullity is omission. Because it is an omission (of an act or formality), it is often difficult to state whether or not there was damage. The existence, or not, of the damage could only be verified if the process of the act performed was compared with the process of the act not performed. However, this is legally unfeasible. This infeasibility leaves in doubt as to the existence of damage. Considering that verification of prejudice concerns the assessment of evidence, the magistrate must apply the principle in dubio pro reo” (Medeiros, Flavio Meirelles – Nullities of the criminal procedure. Porto Alegre, Síntese, 1982. p. 37). An example: to reach a decision on a certain subject, five people were invited. One of them was missing. The meeting reached conclusion X. With one person missing, was conclusion X the right one or not? Was there a loss due to the absence of a guest? Is there a way to determine if there was damage? Absolutely not. And there’s no reason why you can’t compare the meeting held with four guests with the meeting not held with five. The in dubio pro reo principle  it does not only apply to facts covered by criminal law (the occurrence of a typical fact, self-defence, as examples, are facts whose incidence is affected by criminal law). All facts of relevance to criminal justice, whether substantive or procedural, are subject to the application of the principle, including the “ damage fact ”, a consequence of nullity. When the judge decides on whether or not to recognize the nullity of the procedural act (and damage is part of the identity of nullity) and doubts arise as to the existence of damage, he will be faced with the so-called potential, doubtful, possible, eventual damage. It is opposed by actual harm, that which materially and effectively materializes. Considering that the verification of damage concerns the assessment of evidence, and that the principle in dubio pro reo  is also applicable to facts of a procedural nature, it must be applied when the nullity of doubtful damage is favorable to the defense.

Jurisprudence

Declaring the nullity of a procedural act requires unequivocal proof of the damage suffered by the party, in view of the pas de nullité sans grief principle, provided for in article 563 of the Code of Criminal Procedure. Source: jurisprudence in theses (STJ).

Judgments:

HC 339971/PR, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/18/2016, DJE 08/26/2016;

HC 359592/CE, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 08/16/2016, DJE 08/26/2016;

RHC 044871/PA, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 08/16/2016, DJE 08/24/2016;

HC 354841/SC, Rel. Justice Maria Thereza de Assis Moura, judged on 08/09/2016, DJE 08/24/2016;

RHC 062410/MG, Rel. Justice Felix Fischer, Fifth Panel, judged on 08/09/2016, DJE 08/24/2016;

RHC 062397/SC, Rel. Minister Nefi Cordeiro, judged on 08/09/2016, DJE 08/19/2016.

See also the periodicals (updated to the date of publication): Informativo de Jurisprudência n. 0580, published on May 4, 2016.

Rereading of article 563 of the CPP, Gustavo Badoró and direct and remote damages

Proof of prejudice is not a condition for a declaration of nullity:  Article 563 of the CPP is worded as follows: “ No act shall be declared null if the nullity does not result in harm to the prosecution or defense.” Examined in isolation from the legal system, it can give rise to two interpretations: 1st – nullity will only be declared if damage is demonstrated; 2nd – nullity is not declared if it is possible to demonstrate the non-occurrence of damage. Well then, what is the correct interpretation? From everything we’ve seen, the second one is obviously correct. The most widespread, most accepted, best known and easiest to understand interpretation is the first. It is not doubtful that many have difficulty in perceiving the possibility of extracting the second meaning of article 563. The reason for this lies in the fact that doctrine and jurisprudence give the impression of only knowing the first one. There are three reasons why the second interpretation is correct: 1 – The legislator does not publish rules at random, at random. The standards have aratio legis , that is, a reason for their existence. If the legislator determines that the lack of an essential act or formality of the process entails nullity, it is because he has reason. And what could that reason be if not that the lack of the act causes harm to the parties? Therefore, when the law says that there is a lack of essential act or essential formality generates nullity of the process, it is because it determined that this omission generates damage. In other words, the damage is null. 2 – Article 563 prescribes that “ no act shall be declared null if the nullity does not result in damage to the prosecution or defense ”. According to the literal element of article 563, nullity is not declared if it is possible to demonstrate the non-occurrence of damage(the second interpretation we made above). If the legislator wanted proof of the occurrence of harm to be provided, article 563 would not be worded as it is, but as follows: the act will be declared void if the harm is proved(and in this case, considering the literal element, the correct interpretation would be the first one). The conclusion reached is that the legislator does not require proof of damage, but proof of non-occurrence of damage. The lack of the act results in nullity and it can be removed if the non-occurrence of damage is demonstrated. 3 – As demonstrated, it is normally impossible to prove the damage caused by nullity. The legislator would not demand the impossible, the diabolical proof. The damage may or may not have occurred. When it occurs, it is impractical to prove. Diabolical is proof that is impossible or excessively difficult to produce. The law cannot demand the impossible, the unenforceable, the unreasonable, in terms of probative production. Consequently, the logical and systematic interpretation of article 563 of the CPP leads to the conclusion that its real and exclusive meaning is: “No act will be declared null if it is possible to demonstrate the non-occurrence of damage”. Proof of loss is not required for recognition of nullity. No proof is required. Damage  is not a condition for declaration of nullity . However, if it is possible to prove the absence of damage – and sometimes it is -, nullity is not recognized, because it does not exist. Therefore,  proof of the absence of damage constitutes recognition of the absence of nullity.  Absence of prejudice is not a reason to prevent the declaration of nullity, but the recognition of its non-existence. In the absence of prejudice, the identity of nullity is absent. Once and for all, doctrine and jurisprudence must stop repeating the formula “there is no nullity without proof of damage ”, replacing it with “ the nullity is not recognized only if it is possible to demonstrate the non-occurrence of damage ”.

Immediate harm: There are essential acts that make a criminal case a criminal case. If we exclude these acts, it disappears. Let’s see, then. Let’s exclude from the criminal process one or two of the following components: the complaint, the competence of the judge (any judge can judge), the prior defense, the citation, the opportunity for interrogation and the sentence. Ready! What was left? Anything! Zero. Nonexistent. We ask: to exclude a building from the world, do we need to exclude its foundations, its walls, its roof and its floors? Or is it enough for us to exclude just “one essential thing like that”? Well, the same goes for the process. The process consists of essential acts. It is enough to exclude an essential act to exclude the process itself. The loss is an immediate and logical consequence. The structure of the process, its configuration, its essence was sabotaged. Gustavo Henrique Badaró was extremely happy to clarify and demonstrate how damage occurs in nullities, how it is inherent to nullity. Badaró with the word: “As a rule, failure to comply with the form or failure to observe the elements that make up the typical procedural act will cause damage, under penalty of considering that the legislator has established a form or an element that is irrelevant and useless for achieving the purpose that is intended to be achieved. There must therefore be a reversal of signs. Whether in so-called absolute nullities (unremediable) or in relative nullities (remediable), the atypicality of the act, as a rule, will harm its purpose. Therefore, it will suffice for the party claiming nullity to demonstrate the practice of an atypical act. Certainly, this will not be enough to characterize the nullity. It should also there is a detriment to the purpose for which the unobserved form was infringed. And this is the fundamental point: the party that alleges nullity, and demonstrates that the act was performed in an atypical manner, will not have to demonstrate or ‘prove’ the damage. If there is a model, or a form provided for by law, which has been disrespected, it is normal for such atypicality to cause damage. Eventually, even if the act is atypical, it may not result in harm. However, given the atypicality, it will not be the party that will have to demonstrate the damage. The opposite is correct: maintaining the effectiveness of the atypical act will depend on demonstrating that the atypicality did not cause any harm. And it will be the judge – who is responsible for ensuring the regularity of the process and compliance with the law – who, in order to maintain the effectiveness of the act, Criminal Procedure , Revista dos Tribunais, 3rd ed., 2015, p. 795). 

Remote damage: We conceptualize remote damage as the loss of quantity or quality of the evidentiary body. It is an incomplete concept. It covers only the nulls that occur up to the statement. The concept does not reach the nullities that are verified from then on, since there is, in principle, in the phase of the sentence and appeal, production of evidence. The procedural acts from the judgment relate to the suppression of subpoenas, procedural deadlines, decisions and judgments and, therefore, the remote damage will be another, among others the partiality of the decision (when the deadline of one of the parties is suppressed). In any case, the definition for the 1st instance is perfectly valid (perhaps we can consider the remote damage as being caused, not only to the collection, but also to the contradictory, which would cover the damage in the appellate instances as well as the deadlines of the parties in the 1st instance). It is possible to consider two conceptions of damage. Direct or immediate damage and indirect or remote damage. Direct or immediate damage is the purpose that was not achieved when the act is omitted or is atypical. Failure to achieve the purpose of the act is damage. In this first conception, exposed by Gustavo Badaró, the damage occurs immediately (automatically): an act atypical of the purpose of the act provided for by law is not carried out = damage. Indirect or remote damage, on the other hand, is the result of direct damage, that is, it is the result of the non-fulfillment of the purpose of the act, and which produces the eventual loss (usually of impracticable evidence) or of quantity and/or quality of the evidence collection. . Quality means reliability, reliability. Quantity, trustworthiness, reliability are the qualities one expects from a good and valid collection – due process demands a valid collection. It is this loss of quantity or quality that is called “damage” . In this second conception, the damage is in the evidence. Remote damage is usually potential. Generally there is no possibility of making his test, neither that he is present nor that he is not present.

“No nullity without grievance”  domesticado:  “No nullity without grievance”, translated, means exactly the meaning of its literality: there is no nullity without prejudice. Just as there is no fire without heat. As there is no water without moisture. Heat is inherent in fire, as moisture is in water. The damage is not out of nullity. The damage, while not achieving the purpose of the act, is an immediate (automatic) consequence of the atypicality of the act. Going out looking for the damage of nullity as if it, the damage, were outside it, and not inside it, is like putting your hand in the fire to see if it burns, or in water to see if it is wet. Direct damage is, in principle, always present. Eventually, the remote and indirect damage may not be present. It is in the face of these considerations that, if we are to go on repeating this tired and tedious  “pas de nullité sans grief”, that it be so logically and to signify:  the nullity is not declared only if it is possible to demonstrate the non-occurrence of damage . Now, if the damage is within nullity (like heat in fire), nullity cannot be declared only if it is proved that it is not present. By the way, this is the correct interpretation of article 563 of the CPP. Damage is an element of nullity. he  is in nullity. Atypicality without prejudice seems null, but it is not null. Damage is not a condition for nullity to be declared. Its absence prevents the recognition of nullity because, being absent, it is not nullity. In this step, nullity must always be acknowledged. If the damage is absent, which absence must be demonstrated, there is no nullity. Nullity has prejudice because it is nullity, that is, because an essential act or formality was omitted that had a purpose and which, it is assumed, was not carried out. Our expectation is that one day writers will stop repeating the dusty formula “  it is only null if the damage is demonstrated” , and start experimenting with the use of “ nullity should not be declared only if the non-occurrence of damage is demonstrated”. Here is the correct interpretation of article 563 of the CPP.

Burden of proof. Who is responsible for proving the absence of damage:In the absence of an essential act or essential formality of this act, the damage is presumed. In order for the non-existence of nullity to be recognized, it is necessary to demonstrate the absence of prejudice. Whose burden is it to demonstrate the absence of harm? Well, who allowed the essential act or formality to be missing from the process. Who should ensure the effectiveness of due process? Who is responsible for maintaining the regularity of the process, whether rectifying, ratifying, repeating and annulling procedural acts? Who is responsible for receiving a complaint that does not describe the fact and its circumstances? Who is responsible for receiving a complaint without having competence? Who is responsible for authorizing the process to move forward with poor defense? Who is responsible for receiving a complaint in a private action crime? Who lets the process go by without summoning the defendant? Who is responsible for ensuring the effective defense in the trial of the accused before the jury? Is it the parties? No. It’s the judge. Who agrees with the presence of atypical act in the process is the judge. If he understands that the non-existent or atypical act does not generate nullity, it is up to him, the judge, to demonstrate that there is no damage. Only with this demonstration, on the basis of proof, with dialectics and the methods of deduction, induction and abduction, can nullity be removed. In light of the nullity claim, it is up to the judge to make a reasoned decision. Provides the article 93, item IX of the CF , that all judgments of the Judiciary bodies will be public, and all decisions will be substantiated, under penalty of nullity (…) .

No need to indicate the damage when claiming nullity: When claiming nullity, if the party knows what the damage was, it must indicate it, as it will thus be contributing to form the judge’s conviction. But this indication is not obligatory nor does it constitute a precondition for the recognition of nullity. Damage is presumed. There is no legal provision that he has to be indicated at the time of the argument. There are occasions when it is impossible to make this indication, as not even the party knows for sure that the damage actually occurred.

Repeat is necessary: The damage is inside (it is inherent) of nullity. Its absence means that nullity does not exist. There is no requirement for nullity to exist. Its absence is not an impediment to its declaration, but the real non-existence of nullity. Doctrinal and jurisprudential distortions aside, the lack of an essential act implies recognition of nullity regardless of the investigation of the existence of damage. Nullity, when present, must be declared. If the non-existence of harm is demonstrated (materially or dialectically), there is no nullity. Not that the absence of prejudice constitutes an impediment to the declaration of nullity, but because nullity does not exist. The damage is inherent to the concept of nullity. If there is nullity, it must be recognized. The absence of prejudice is an incident. It excludes nullity. Since the absence is an exceptional fact, which is different from the rule, it must be proven. The rule is: nullity must be recognized. The exception is: if there is no damage, there is no nullity. Therefore, nullity must be declared, unless the lack of damage is demonstrated. Declaring nullity only when damage is demonstrated is to invert the rule. Pas de nullité sans grief”  means that “there is no nullity without prejudice”. It is literally and absolutely right. Every nullity contains prejudice. If there is no damage, it is not null. That’s what this misunderstood old Gaul means.

Jurisprudence

In order for nullity to be recognized, the party must specify the damage verified:  The request for recognition of nullity of procedural acts must clearly state how the new act would benefit the defendant ( HC 109.708, rel. min. Teori Zavascki, judgment on 23-6-2015, judgment published in the DJE of 3-8-2015  – Bulletin 791, Second Panel).

structure of nullity

Anatomy of Nullity:  Nullity is made up of four elements. Namely: 1 – essential act omitted or essential formality of essential act omitted (internal view: essential legal relationship or sub-relation of essential legal relationship omitted in the succession of procedural legal relationships); 2 – purpose of the act not carried out (immediate damage); 3 – loss of quantity or quality of evidence (remote damage); 4 – effectiveness of the act/omission as long as there is no judicial decision declaring nullity; 5 – extension of the effect of the declaration of nullity (ineffectiveness) to dependent acts.

Difficulties and importance of nullities

Complex topic: Nullities are a complex topic. One of the most important. There are many doctrinal disagreements. More so the jurisprudence. In order to know nullities of the process, it is necessary to know about the other procedural institutes, including summons, denouncement, examination of the body of the crime, sentence, procedural rite, principles of law, competence, legitimacy and others. Only by knowing the institute of nullities, the judge is able to maintain the regularity and effectiveness of the process. Only by mastering this institute can the parties effectively protect their rights.

The health of the process is directly related to that of the nullities: The health of the process is evaluated by the nullities. They work like a thermometer. Nullity – as a sanctioning norm that aims to protect fundamental principles of the process –, when its value is disregarded, is a sign that the criminal process is losing its meaning of guarantee. From the turn of the millennium, the institute has suffered attacks from instrumentality and effectivenessof the process. Instrumentalism implies that the process is a mere instrument for applying punishment and that it is effective when it punishes. The meaning of the process as a guarantee is set aside. It’s not hard to see why the process is warranted. The process is not an isolated entity. Criminal repression takes place in two stages: the investigation and the process. In the first, the principle of public security prevails; in the second, that of the guarantee. The investigation seeks to clarify the crime and authorship. It’s inquisitive. It is objectively partial. The investigation gathers evidence. Evidence tending to prove authorship and crime, not the opposite, not to prove. The purpose of the process is to put the inquisitive evidence to the test. It works like a filter. The objective investigation that crimes and their authors do not go unpunished. The process, on the other hand, seeks to prevent innocent people from being condemned. “The police arrest and the judge releases” is a popular saying. Mistaken. The police don’t arrest. Ninety percent of crimes are not clarified by investigations. If cyber crimes are included, whose police inefficiency continues to be appalling, this index increases. The reason for impunity is therefore not in the criminal process nor can it be attributed to judges. The investigation is partial. It is operationalized in favor of the State and the principle of security. Given this fact, does it not seem reasonable that the process – not the judge – should be equipped with relative bias? In favor of the freedom of the citizen? Well then. The process is, yes, partial. The constitutional principle of the presumption of innocence is subdivided into two others: that of Mistaken. The police don’t arrest. Ninety percent of crimes are not clarified by investigations. If cyber crimes are included, whose police inefficiency continues to be appalling, this index increases. The reason for impunity is therefore not in the criminal process nor can it be attributed to judges. The investigation is partial. It is operationalized in favor of the State and the principle of security. Given this fact, does it not seem reasonable that the process – not the judge – should be equipped with relative bias? In favor of the freedom of the citizen? Well then. The process is, yes, partial. The constitutional principle of the presumption of innocence is subdivided into two others: that of Mistaken. The police don’t arrest. Ninety percent of crimes are not clarified by investigations. If cyber crimes are included, whose police inefficiency continues to be appalling, this index increases. The reason for impunity is therefore not in the criminal process nor can it be attributed to judges. The investigation is partial. It is operationalized in favor of the State and the principle of security. Given this fact, does it not seem reasonable that the process – not the judge – should be equipped with relative bias? In favor of the freedom of the citizen? Well then. The process is, yes, partial. The constitutional principle of the presumption of innocence is subdivided into two others: that of whose police inefficiency continues to be appalling, this index increases. The reason for impunity is therefore not in the criminal process nor can it be attributed to judges. The investigation is partial. It is operationalized in favor of the State and the principle of security. Given this fact, does it not seem reasonable that the process – not the judge – should be equipped with relative bias? In favor of the freedom of the citizen? Well then. The process is, yes, partial. The constitutional principle of the presumption of innocence is subdivided into two others: that of whose police inefficiency continues to be appalling, this index increases. The reason for impunity is therefore not in the criminal process nor can it be attributed to judges. The investigation is partial. It is operationalized in favor of the State and the principle of security. Given this fact, does it not seem reasonable that the process – not the judge – should be equipped with relative bias? In favor of the freedom of the citizen? Well then. The process is, yes, partial. The constitutional principle of the presumption of innocence is subdivided into two others: that of Doesn’t it seem reasonable that the process – not the judge – is equipped with relative bias? In favor of the freedom of the citizen? Well then. The process is, yes, partial. The constitutional principle of the presumption of innocence is subdivided into two others: that of Doesn’t it seem reasonable that the process – not the judge – is equipped with relative bias? In favor of the freedom of the citizen? Well then. The process is, yes, partial. The constitutional principle of the presumption of innocence is subdivided into two others: that ofin dubio pro reo and o do favor rei . The former applies in favor of the accused when examining the evidence, the latter also in favor of the citizen when interpreting the norm. Instrumentality and effectivenessof the process for the realization of the criminal law do not mean the realization of the right to punish. This is the distorted, punitive view of criminal procedure. Carrying out criminal law does not only mean punishing, but also absolving those who have not committed crimes. Applying criminal law is not only applying incriminating norms, but also the absence of these norms, that is, the gaps between criminal typicalities. It is also applying the exclusionary norms of guilt and anti-juridicity. The process that does not punish is as effective and instrumental as the one that punishes. Maybe even more, because process is guarantee. For two decades now (current date: 2020), the health of the criminal process has been deteriorating. If the thesis remains valid that to declare the nullity, the damage must be proven, the criminal process will continue to be what it has become: a weakened entity. Legal theory can devolve. This has happened with the theory of criminal procedure since the principled interpretation, instrumentality and effectiveness became superheroes of the new times, when all rules and values ​​are relativized.

Procedure, acts and form

Procedure, acts and form:From the point of view of its interior, the process is a legal relationship. In its exteriorization, it is procedure. Procedure is the set of procedural acts. Procedural act is human action that occurs within the process influencing its development. Procedural acts are essential or not. They are essential when they are essential for carrying out the process. The presence of essential acts confers suitability to the process. If an essential act is missing in the process, it is because a fundamental principle of the process has been violated. It is that the essential acts are created to give effect to these principles. The lack of an essential act in the process entails the nullity of some of its acts or of the whole of it. Procedural acts have a form pre-established by law, their typicality. The absence of essential formality in an act that is also essential,

Essential acts, non-existence, invalidity, irregularity and nullity

Essential acts. Article 564 is not exhaustive: There are essential acts and non-essential acts in the process. What is an essential act? Essential act is every one whose normative forecast aims to give shelter and effectiveness to a fundamental principle of process, usually constitutional. Another characteristic that distinguishes the essential act is that it is potentially capable of influencing the quality of the final evidentiary body of the process, that is, its quantity, reliability and reliability . Article 566 contributes to an idea of ​​what an essential act is: it is one that is potentially capable of influencing the determination of the substantial truth or the decision of the cause. The act of defense (a complex act, as it stems from a succession of acts) is essential because it contributes to the process complying with the principles of the adversarial system and full defense. Also contributing to the implementation of these two principles, among other acts, the citation, the initial accusatory piece, the intervention of the Public Ministry, the interrogation, the granting of deadlines for the accusation and for the defense, the sentence, the libel. The examination of the forensic evidence in offenses that leave traces, the competence of the judge, the non-suspicion or impediment of the judge also ensure fundamental principles of the process: no one will be convicted without proof of a crime, the principles of competence and impartiality of the judge. The essential act cannot be dispensed with: it is essential.

The enumeration of essential acts of article 564 is illustrative: Article 564 lists, by way of example, some essential acts of the process. It is not exhaustive enumeration. Article 3 allows analogy in procedural matters. The norms that predict nullities do not have the character of exceptionality. They include extensive interpretation and analogy. As Bettiol teaches, “only when the norm represents a true and proper interruption in the logical projection of the system should it be considered exceptional” (BETTIOL, Giuseppe. Diritto Penale: G. Priula, 1958). Nullities are extensions, in the form of a guarantee, of the general principles of procedural law. They do not interrupt or go in the opposite direction of the normative order; on the contrary, they are the ones who point out their directions. There are other essential acts that are not included in article 564, such as obedience to the procedural rite proper to the crime that is imputed to the defendant, the absence of impediment on the part of the judge, the ministerial request when the beginning of the process depends on it, the non-inversion of the order of questioning of witnesses when they testify about circumstances relating to the alleged fact. With the exception of letters “d” and “e”, second part, “g” and “h” of item III and item IV of article 564 of the CPP, all acts contained in this provision are essential acts. When omitted in the process, they cause absolute nullity of the process. These nullities are independent of timely arguments (see Article 572 ).

Non-existence of an essential act and requirement for the existence of an essential act: The immediate consequence of the absence of an essential act is the nullity of the process or of some of its acts. Does the nonexistent act really nonexistent? It’s academic discussion. Depends on the viewpoint. If João is in front of the computer and there are no glasses on the table, the fact that glasses do not existexist. If João considers going to the kitchen to get some fruit and he doesn’t go, the act of not going to the kitchen is an existing fact. It is an omissive act. While on the plane of existence one can discuss whether the act exists or not, nullity – there is no doubt – exists. Nullity is the incidence of the sanctioning norm. It is the invalidity sanction of the omissive act. The absence of an essential act is the cause of nullity. The non-existence of the act is presented in two ways: (1) through the effective and material non-existence of the act; (2) upon the absence of a requirement for the existence of the act. In the first hypothesis, the act is legally and materially non-existent. In the second, the act exists materially (it exists in fact), but it does not exist legally. A typical example of this second hypothesis is the complaint that does not contain the description of the criminal act.

Invalidity of essential act. Identification of the essential formality:There will be nullity even when the essential act is invalid. The act is invalid when it lacks essential formality. Essential formality is less than a requirement of existence. An example of an essential formality is the prosecutor’s signature on the opening part of the process. There will be nullity whenever an essential act or essential formality of an essential act is missing. In these two cases, there is a presumption of harm. The presumption of prejudice arising from the lack of an essential act does not admit proof to the contrary. The one that derives from the lack of essential formality admits. If there is an omission of an essential formality (in an essential act), proof of the absence of damage excludes nullity, that is, there is no nullity. The prejudice is present in nullity as a presumption. If there is proof of its non-existence, nullity, being relative, collapses.

Mere irregularity: In procedural typicality, starting from the most to the least important, we have: essential act, existence requirement, essential formality, non-essential formality. Irregularity is a defect of the act derived from the lack of non-essential formality.

In summary: Nullity originates either in the absence of an essential act, or in the lack of a requirement for the existence of an essential act, or in the lack of essential formality of an essential act. The irregularity is a consequence either of the lack of non-essential formality in an essential act or not, or of the lack of a non-essential act in the process.

Nullity concept. External and internal aspects

Concept of nullity from the external point of view:In its exteriority, process is procedure. It is a set of acts that follow each other. The concept of nullity is commonly elaborated taking into account the external aspect of the process. What is Nullity? Is it the non-existence of the act? Is it your invalidity? Is it ineffectiveness? Is it sanction? Nullity is a consequence of either non-existence or invalidity. Absence or invalidity of essential act. The null, invalid or non-existent act remains effective. Effectiveness is only subtracted from the null act upon judicial recognition of nullity. While the nullity is not recognized by the jurisdiction, the null act produces effects, it is effective. Nullity is conceptualized as a procedural defect, derived from the lack of an essential act (non-existence of the act) or the lack of essential formality of an essential act (invalid act), and which contains presumed damage.

Concept of nullity from an internal point of view:The legal fact gives rise to the legal relationship, which is constituted by an obligatory bond between two subjects. On one side of the relationship is the active subject, holder of the subjective right, and on the other the passive subject, the debtor, obliged to provide. The process is a legal relationship that links the action (and exception, or defense, is action) to the jurisdiction. The right of action (and the right of exception) and the jurisdictional power are composed, respectively, of sub-rights and sub-powers. The right of action comprises a series of derived rights. The legal relationship from the point of view of action/jurisdiction is unitary. As one enters into the unitary legal relationship action/jurisdiction, it is possible to perceive the existence of a series of legal sub-relations. The procedural relationship develops with a succession of legal relationships. When one dies, another appears. When this one is extinguished, a new one appears. And so on. The process begins, develops and ends with successive realizations of facts and procedural legal acts. They are legal relationships that are being born, being extinguished and giving birth to new ones until the end of the process. These are complex relationships, as the judge and the parties simultaneously occupy the active and passive positions. They are progressive. This means that legal relationships, when extinguished by the fulfillment of the provision, give rise, simultaneously, to new legal relationships. The publication of a judgment is a procedural legal fact that, by extinguishing the right of the parties to a judicial pronouncement, gives rise to their right to file an appeal. Receipt of the appeal (which is a duty correlated to the right to file an appeal) extinguishes the right to file an appeal and gives rise to a new legal relationship linking the parties to the judges of the court, those with the right and the latter with the duty of judgment. Thus, it is observed that the exercise of rights and the fulfillment of duties in the process constitute legal facts that give rise to new legal relationships with new subjective rights and duties. This is how the process progresses to its end. Well then. What is the concept of nullity from the point of view of its interior? The essential procedural acts must necessarily exist, happen. They give birth to essential legal relationships that bind the parties to the judge. If an essential act is omitted, the process lacks a legal relationship essential to the chain of legal relationships, that is to say, to the valid development of the process. In the causal chain of legal relationships, those following the missing legal relationship are contaminated by invalidity. It’s like a chain. If one link is missing, the other successive ones detach from the chain, becoming worthless, invalid, purposeless links. From the point of view of the internal process,nullity is, therefore, the lack or invalidity of an essential legal relationship, which causes a presumption of violation of the interest (the loss) that the right contained in that omitted relationship was intended to protect. The invalidity of the legal relationship stems from the lack of a sub-relation of the main legal relationship. Rights (and duties) are complex, that is, they contain sub-rights. The same goes for the process. It is a single legal relationship, but composed of several legal sub-relations. The public prosecutor, when denouncing, setting an example, has the right/duty to expose the fact imputed to the accused and, also, to sign the complaint. The right/duty to denounce therefore contains two other rights/duties: that of exposing the imputed fact and that of signing the accusatory document. Another example: the right of defense is made up of a series of other rights. Returning to the complaint: the lack of exposure of the criminal fact in the complaint constitutes absolute nullity, since a complaint without a description of the fact is a non-complaint. Absent qualifies as a complaint, i.e. absent the legal relationship. In the case of lack of signature, however, it is not a main legal relationship that is absent, but a sub-relation (a sub-right/sub-duty). In this case, when there is no derivative or ancillary legal relationship to the main one, there is an absence of essential formality, that is, relative nullity.

Distinguishing Illicit Proof from Nullity: See this same heading in comments to article 157.

Legal nature of nullity. Sanction:

Nullity is the provision of the sanctioning norm: Some norms, when violated, result in the application of a sanction. For the violation of the incriminating penal norm, there is a sanction, which is the penalty. Disciplinary sanctions exist for the violation of certain rules of an administrative nature: suspension, fine… There are also procedural sanctions: sanctions of preclusion, decay, inadmissibility and nullity. Manzini characterizes estoppel sanctions as those that prevent, through the decadence and consequent inadmissibility of the act, untimely or otherwise irregular activity (MANZINI, Vicenzo. Trattado di Diritto Processuale Penale .Turin: 1932). The sanction of inadmissibility is the one to be applied by the magistrate (who is responsible for maintaining the regularity of the process) in any case in which it is intended to perform an act or carry out a procedural activity contrary to the law. The sanction of inadmissibility prevents nullities from occurring in criminal proceedings. The sanction of nullity applies when the inadmissibility fails. Sanction of nullity is the one that fulminates the act already performed with non-compliance with the conditions of manner and time. The constituent elements of the norm are: hypothesis (“supuesto” in Spanish) and provision . The disposition is the consequence of the realization of the hypothesis. Sanction is the provision of a rule, provided for in case of non-compliance with the provision of another rule. The hypothesis of the sanctioning rule corresponds to non-completion of the provision of the sanctioned rule. The enforcement of the sanctioning norm is conditioned to the non-acting of the sanctioned norm. The enacted norms provide for essential acts. The absence of an essential act or its essential formality constitutes the hypothesis of the norm sanctioning nullity. Nullity is the provision of sanctioning norm. The provision of a sanctioning rule is called a sanction. For example: the sanctioned norm has the hypothesis of a crime that leaves traces and the duty to carry out the examination of the forensic evidence . The sanctioning norm has by provisionthe failure to carry out the examination of the body of the crime in an infraction that leaves traces and by provision (sanction) the invalidity of the process.

Planes of existence, validity and effectiveness

Plane of existence. The imposter judge: Missing an essential act, what do you have? Non-existence of the act or existence of the omission of the act? Not only acting exists. The non-acting too. What did not happen does not cease to be an event. It is the event of the unsuccessful. That said, we ask: does the non-existent act exist or does it not exist? It doesn’t make the slightest bit of difference. The non-existence of the essential act or the lack of essential formality constitute nullity. And this exists, because it is a sanction that focuses on existence/non-existence. Making use of an example. The judge goes on vacation. He doesn’t return. An imposter returns. He is not recognized as such and presides over a process from beginning to end, which results in a conviction. The defendant is serving a one-year sentence until the procedural defect is recognized. It was a non-process? Does the process not exist? Whether it exists or not, it doesn’t matter, the process is null, since the jurisdiction was absent. Whether it exists or not, it produced effects, as the condemnatory sentence entailed serving the sentence. This penalty may be deducted from any penalty to be applied in a new valid process to replace the (non)existent one. The process devoid of jurisdiction, had not produced effects, the time of sentence served, or even the preventive one, could not be discounted. More: existing or not, the false process needs a judicial decision to be annulled. It is not null per se. If it were void by itself, the jailer or the clerk would be authorized to order the release of the condemned person. And it’s not. Conclusion: whether non-existence or not, the recognition of nullity depends on a court decision. Without court decision,

Plan of validity: The non-existence of the essential act causes the invalidity of the act. Act? Yes, omission is an act. It is an omissive act. The absence of essential formality of an essential act also, equally, leads to the invalidity of the act. In both hypotheses the act (or omissive act) is null.

Effectiveness Plan: The null act remains effective as long as the nullity is not recognized and declared by court decision. Judicial recognition of nullity has the effect of deconstructing the effectiveness that the act had and that of those dependent on it in the causal chain. There is not necessarily a deconstitution of the effectiveness of all successive acts to the null act, but those that the null act constitutes cause.

The annulment of the appointment of the judge:This example is classic in doctrine. It concerns validity and efficacy. The judge is appointed and begins to exercise jurisdiction. He presides over some cases and some defendants are convicted, others acquitted. Subsequently, for whatever reason, your appointment is annulled. Should the processes he presided over be annulled? The answer to this question has been no, that is, the processes are valid. The principle of legal certainty is invoked. It does not seem necessary to resort to principles of law to resolve the issue. The nomination was void. Administrative act. Null act. Nullity was verified outside the procedural relationship. The nullity of the administrative law relationship that binds the invalidly appointed administrator does not reflect in the process because they are two distinct legal relationships: the administrative and the procedural.

Absolute nullity. Effects of judicial recognition of nullity

Effects of judicial recognition of nullity:The null act – it does not matter whether absolutely or relatively – is invalid. It is invalid, but persists producing legal effects. It has effectiveness. So much so that the condemnatory sentence handed down in a null process absolutely produces the penalty effect. Nullity constitutes a sanctioning norm, that is to say, in order for it to produce a sanctioning effect, it needs to be applied. Nullity stems directly from the law, but its deconstitutive effectiveness depends on the judge’s initiative to apply it to the concrete case. The decision that recognizes nullity has a dual nature: it is declaratory and deconstitutive. It declares what preexists (nullity) and deconstitutes the effects of the null act. The nullity is not born with the decision that recognizes it, but previously, when conditions of time and manner of the procedural act were omitted, that is, when the typical nature of the act was breached. Once the nullity is recognized and declared, the effectiveness that the act had (retroactively) is deconstituted and it prevents the one that it would have in the future. The declaratory sentence of nullity acts for the past and for the future in the sense of excluding the effectiveness of the act. Judicial recognition deconstitutes the invalid act/omission, causing its effectiveness to cease and withdrawing the one it had. The sanction of nullity is thereforesanction of ineffectiveness .

Absolute nullity. Identifying and declaring nullity

The Birth of Nullity:The nullity is born with the absence of an essential act of the process or with the absence of essential formality of this same type of act (essential). As the essential act results from a normative manifestation of the general principle of the process, if it is missing or has been performed in an atypical way, the damage is presumed. In other words, the general – and fundamental, or better yet, founding – principle gives rise to the norm that predicts the essential act. Absent the essential act, the purpose of the principle is not realized. The damage is a presumption. Failure to achieve the purpose of the act is a fact. It is the first reason why prejudice is presumption. If the purpose of the act was not carried out, it is a logical consequence to assume that there is damage to the body of evidence, whether quantitative or qualitative (trustworthiness and reliability), or even damage to the contradictory (in the case of a process that is at the appeal level). Therefore, the first fundamental rule of nullities is: lacking an essential act or its essential formality, there is, in principle, nullity.

Absolute nullity and prejudice: There are two hypotheses: either the essential act is absent or the essential formality of an essential act. In the first hypothesis – lack of essential act – nullity is absolute. The presumption of harm does not admit of proof to the contrary. It is a juris et de jure presumption.. It is a presumption that the legal order considers true. Only by making a dead letter of due process would it be possible to demonstrate the absence of prejudice in the absence of an essential act. Given the violation of a fundamental principle, it is impossible to deny the absence of prejudice. When the judge is incompetent because of the matter, can the absence of prejudice be demonstrated? When is it incompetent due to function prerogative? When is the judge suspicious? When was he bribed? Before the MP proposing private criminal action? Complaint that does not impute and describes the criminal fact? Absence of defense? Absence of direct or indirect corpus delicti examination in a crime that leaves traces? No citation? Failure to notify the accused for the instruction and trial hearing? Pronunciation sentence in a condemnatory version (excessive language)? Absence of subpoena and questioning of witnesses listed? Jury draw? Judgment without reason? These are all examples of omissions of essential acts. There is no question of investigating the damage. The damage is presumed and cannot be demonstrated to the contrary.

Absolute nullity and estoppel: Absolute nullity is not subject to the estoppel effect. Argued or not, it must be recognized at any stage of the process, in any instance, even after the final and unappealable decision, in the latter case through habeas corpus or criminal review.

Absolute nullity and declaration of ex officio: Absolute nullity, to be recognized, does not depend on the party’s argument. It can – and should – be recognized and declared ex officio by the magistrate. There is no impediment for the parties to argue it. There is also no obstacle for the prosecutor to allege it, even if it favors the defense. For a first reason, because it is the responsibility of the Public Prosecutor’s Office to ensure the legality of the process. For a second, to prevent the nullity from being recognized at a later time when, in view of the possible prescription, the process cannot be redone. Therefore, it is in the interest of the prosecution that the absolute nullities are immediately recognized, aiming at their rectification. 

The act reaching its end and absolute nullity: According to article 572 , item II, if the act, practiced in another way, has reached its end, there is no nullity. This device deals with relative nullities. It only applies to them. In the absolute, there is a requirement for the presence of an essential act with legal compliance. There is no way to replace an essential act with another, as it has a specific conformation intended to achieve its purpose. Only exceptionally. These are the hypotheses, for example, of the absence of citation and subpoena. But these are cases expressly provided for by law. Both the lack and nullity of the citation, subpoena or notification are corrected, if the interested party appears before the act is consummated ( article 570 ).

The relative nullity

Relative nullity and damage:Absent essential formality of essential act there is, in principle, nullity. It is relative nullity. In the relative, the damage is also supposed. The idea that in the relative the damage needs to be demonstrated is incorrect. There is, equally, as well as in the absolute, presumption of prejudice. The essential formality has a purpose. If the act is atypical, the purpose, as a result, has not been achieved. The damage lies within both absolute and relative nullity, as a presumption. But there is a difference. While in the absolute case it is not possible to rule out nullity with the objection of absence of prejudice, in the relative case the demonstration of absence of prejudice is authorized. Demonstrated that it is the absence of damage in the relative, there is no nullity, since the damage is a presupposition of nullity, it is within it, it is one of its constituent elements.It is not an impediment to a declaration of nullity , but recognition of its non-existence . There is no prejudice when the null act otherwise reaches its end. The criterion of interest – used to distinguish absolute and relative nullity, according to which absolute nullity serves the public interest, and relative nullity serves the private interest – is unconvincing. There is always public interest in carrying out the typical act.

Damage and decision of the cause in favor of the person who takes advantage of the nullity: According to paragraph 2 of article 282 of the CPC, when the judge can decide the merits in favor of the party who takes advantage of the decree of nullity, the judge will not pronounce it or order the repetition of the act or remedy the lack. The reason for this provision, applicable to criminal proceedings, lies in the following premises: if the judge can decide the merits favorably, the existence of prejudice cannot be considered; if the judge decides to acquit the accused, there is no reason to justify declaring the nullity. However, as there may be an appeal from the prosecution and a change in the decision at the higher court, the defense must, in the counterarguments of the appeal, argue the nullity, requesting its appreciation in case the court intends to reform the acquittal sentence. The omission of this formality in the counterarguments does not remove the duty of the court, if it understands that it should modify the decision in an unfavorable manner to the defendant/appellee, preliminarily, decide on the alleged nullity. The defendant/appellee has a claim before the jurisdiction regarding the assessment of the timely nullity claimed in the 1st instance. As the nullity was argued at the appropriate time and, also, in view of the devolutive effect of the appeal, there is no obligation for the argument to have been repeated in the appellate briefs.

Absolute and relative nullity. Differentiation:There are three distinctions between absolute and relative nullity: 1 – absolute nullity stems from the lack of an essential act. The relative, of absence of essential formality of essential act; 2 – absolute nullity can and must be recognized in any instance, even against res judicata. In the relative case, if it is not alleged in the opportune moment, the sanction of estoppel applies; 3 – the absolute does not admit proof of non-existence of prejudice. The relative admits. Both nullities, relative and absolute, are remediable. The first, while the preclusion is not verified. The second, while the sentence is not published, as long as there is no prescription. Both, equally, must be officially recognized. The relative, as long as there is no estoppel. Absolute, at any time, including through habeas corpuscraft. It is incorrect to understand that relative nullity, as it serves the interest of the party(the interest is public even in the relative), cannot be recognized by the judge’s initiative. If that were the case, the judge would not be able to correct the defect during the course of the proceedings, having to wait for the party to argue it, which could be done on the last day of the argument period. The work done so far would be totally or partially unusable. It would have to be redone. Relative nullity can be recognized ex officio by the judge, as he is responsible for maintaining the regularity of the process in compliance with the principle of due process. The judge must take care of the process as the doctor takes care of the patient: preventively. Present the disease, the intervention must be immediate. Both nullities, therefore, not only can but must be pronounced ex officio. The absolute, at any time. The relative, while the period for its argument has not elapsed.

The relative nullity and the need for its timely argument: The estoppel can be temporal or logical. With estoppel, the right to claim nullity is lost. The validation of the invalid act is verified, that is, its validity is restored. Temporary estoppel occurs when the claim is not made before the legal deadline has elapsed. The logical estoppel, when the party has accepted the effects of the act, even if tacitly ( article 572 and its items). There are three main characteristics of relative nullity: 1 – it has as its cause the absence of essential formality of an act that is also essential; 2 – it must be opportunely argued under penalty of estoppel; 3 – it is mischaracterized as nullity if the absence of damage is demonstrated. There is no need to prove damage for relative nullity to be recognized. Proof of non-existence of damage, however, excludes the very existence of nullity, it does not matter that it has been opportunely alleged. From the reading of article 572, it is possible to conclude that the null hypotheses provided for in article 564 , item III, letters “d” and “e”, second part, “g” and “h” and item IV, are relative, as they remedy if they are not raised within the terms of article 571, or if the party, even if tacitly, has accepted its effects ( article 572). They are the nullities arising from the lack of intervention by the Public Ministry in all terms of the action brought by the offended party in a crime of public action (second part of letter “d” of article 564), the failure to grant deadlines to the prosecution and the defense (second part of letter “e”), the lack of subpoena of the defendant for trial session by the Jury Court (in person or by public notice, as judgment is currently authorized when there is default – letter “g”) and the lack of witnesses enlisted by the parties to testify in Plenary (the libel and the contrariety – letter “h” were extinguished). They all constitute relative nullities. But this enumeration is not exhaustive. Article 564, item IV, also provides for relative nullity by saying thatthere is nullity due to omission of formality that constitutes an essential element of the act. Validation due to the absence of an argument is established in the caput of article 572, item I.

Some examples of relative nulls:Why do relative nullities depend on the manifestation of the party? It is because they are minor vices. The act is non-existent. In the relative there is a vice of the act. The damage is presumably minor. The party may not feel harmed by the invalidity of the act. Conscious non-argumentation occurs more frequently on the part of the prosecution, who is particularly interested in the speed of the process. The defense, normally – and it is not outside its function to act like this –, perceiving them, argue the relative nullities. There are occasions when I did not argue, when I should have, which can characterize a defensive deficiency (a nullity that exceptionally does not depend on a timely argument). Examples of relative nullities are: incompetence due to the location of the infraction; lack of communication to the accused about the right to remain silent during interrogation; inversion of the order of questioning witnesses (except when the inversion occurs with witnesses for the prosecution and defense who witnessed the same events related to the criminal act, in which case the nullity is absolute); questioning of the witnesses by the judge before the parties are given the opportunity to formulate the questions, with the inversion of the order foreseen in thearticle 212 ; absence of subpoena from the defense regarding the issuance of a writ of mandamus for hearing a witness; defense deficiency; alteration of the order of support in the courts; lack of grounds for the decision to receive or reject the complaint; absence of grounds for the decision rejecting the request for due diligence; lack of subpoena of the parties regarding the evidence entered in the file; lack of intervention by the Public Ministry in all terms of the action brought by the offended party, when it is a crime of public action ( article 564, item III, “d”, second part , combined with article 572); lack of ministerial intervention in the action brought by the offended party, in the case of a private action crime (article 564, item IV); absence of the prosecutor at the instruction hearing (may be argued by the defence); not giving the party an opportunity to comment on a witness not located; lack of grounds for the decision rejecting the allegations of the prior defense; absence of prior defense; lack of signature on the complaint or sentence.

Presence of damage and absence of timely argument. Deficient defense: There are occasions when relative nullity is not argued in due time, but there is prejudice. In such cases the nullity must be recognized. If she was not accused, it is because there is a lack of defense and it is up to the judge to ensure the regularity of the process, which includes the indispensability of an efficient defense. The accused cannot have his right to due process impaired by an ineffective defense. According to article 278 of the CPC , sole paragraph, estoppel does not prevail when the party proves legitimate impediment. A deficient defense can, in certain cases, constitute a legitimate impediment for the accused to make the claim of relative nullity in time.

Recognition of relative nullity after the final decision: Absolute nullity can be recognized even after the final decision; the relative does not. That’s the rule. But there is an exception. If the relative nullity was argued during the course of the proceeding (in the 1st instance and in the appellate instances) and it was not appreciated, in this case, it can be recognized even after the final and unappealable decision.

Opportune moment for the argument of relative nullity

Opportune moment for the claim of relative nullity: The claim of relative nullity must be made within the term of the law. The effect of not making a timely argument is estoppel. The right of timely argument, in turn, is the right to judicial assessment of the nullity. The judge can demonstrate the absence of prejudice, which does not characterize the nullity. Despite the absence of a timely argument, the judge can recognize it. In Article 571 , in its paragraphs, the legislator set deadlines for the argument of relative nullities. We proceed to examine them in the light of the changes undergone by the CPP. The following are the deadlines:

– item I – those for the criminal investigation of cases within the jurisdiction of the jury, within the time limits referred to in article 411, paragraph 4 (final arguments);

– item II – those verified from the complaint, within the period of the prior defense ( article 396-A – note that this device makes express reference to the preliminaries), and those of the criminal instruction of the processes of competence of the single judge and of the processes specials within the period referred to in article 403 (in the closing arguments);  

– item III – in the summary procedure ( articles 531 et seq. ), the deadline for the argument is that of article 534 (in the final allegations);

– item IV – revoked the process of applying the security measure due to a non-criminal fact;

– item V – those that occurred after the pronouncement, right after the judgment was announced and the parties proclaimed;

– item VI – those of proceedings within the jurisdiction of the courts, within the period of defense and final allegations of articles 4 and 12, respectively, of Law n. 8,038/90 ;

– item VII – if verified after the decision of the first instance, in the reasons for the appeal or soon after the judgment of the appeal has been announced and the parties proclaimed;

– item VIII – those of the judgment in plenary, in hearing or in court session, soon after they occur.

Nullity not argued in the prosecution’s appeal: The  reformatio in pejus  is prohibited on appeal. If only the accused appeals, the decision cannot make his situation worse. Nothing to your disadvantage can be acknowledged. Nor nullity. In this sense, the  Precedent 160 of the STF :  The decision of the Court that upholds, against the defendant, nullity not argued in the prosecution’s appeal, except for cases of ex-officio appeal (  see  jurisprudence subsequent to the publication of the Precedent ). See subheading Prohibition of reform for the worse in the heading Legal nature and governing principles in comments on Article 574.

Interest and non-participation of those who argued in the causation of nullity

Interest and non-participation of those who argued in the cause of nullity: Article 565 provides that none of the parties may argue nullity to which it has given cause, or for which it has concurred, or referring to a formality whose observance is only in the interest of the opposing party. Therefore, the assumptions of the argument are as follows: (1) the person arguing has an interest; (2) who argued did not give cause for nullity. Who is interested? One to whom the atypicality of the act may cause harm. But note, the timely argument can be made by the party that has no interest. In this case, however, the allegation does not have the effect of removing the estoppel. The effect of the argument – ​​that of removing the estoppel – only affects when the argument is made by the immediately interested party. The claim of nullity (absolute or relative) of the interest of the other party can be made by both the prosecution and the defense. The prosecutor may have an indirect interest in recognizing the nullity (in the direct interest of the defence), so that the process does not proceed irregularly, since, in the future, the procedure may have to be reversed, which involves the risk of statute of limitations.

The principle of the natural judge available to the party. Unconstitutionality of article 157, paragraph 5? Pursuant to paragraph 5 of Article 157 , the judge who is aware of the content of the evidence declared inadmissible may not issue a sentence or decision . This device creates the possibility that the party has a disposition on the natural judge ( article 5, item XXXVII of the CF ). Does this result in the unconstitutionality of the device? On the subject, see the title Constitutionality of the device , in comments to article 157.

The influence of the act in the decision of the cause and in the verification of the substantial truth

The influence of the act on the decision of the cause and on the verification of the substantial truth: The wording of article 566 follows : The nullity of a procedural act that has not influenced the verification of the substantial truth or the decision of the cause will not be declared . Similar to what happens with article 563, when it is necessary to stop repeating the formula “there is no nullity without proof of damage”, replacing it with “nullity is not recognized only if it is possible to demonstrate the non-occurrence of damage”, article 566 cannot be interpreted in the sense of that “it is necessary to demonstrate that the nullity influenced the verification of the truth or the decision of the case”, and rather its meaning that “if there is proof that the omitted act or formality did not influence the verification of the truth or the decision, it will not there is null”. It’s just that both devices, articles 563 and 566, ultimately deal with the same object: the presence of damage in nullity. The non-existence of the burden on the party to prove that the nullity of the act did not influence the truth or the decision has the same reasons why the party does not have the duty to prove damage. These reasons are set out in the titleIdentifying the damage and impossibility of its proof , in comments to this Article 563. Although it can be said that the present provision repeats, in a certain way, the meaning of Article 563, it is possible to extract an important identifying element of an essential act: an essential act is one capable (who has the power) to influence the determination of the substantial truth or the decision of the cause.

Extension of the effects of judicial recognition of nullity

Extension of the effects of judicial recognition of nullity: Paragraph 1 of article 573 of the CPP provides : The nullity of an act, once declared, will cause the nullity of the acts that directly depend on it or are a consequence. The effect of the judicial recognition of nullity is to deconstruct the effectiveness of the null act. Nullity becomes ineffective from the moment it began to exist. This effect of recognizing the nullity of the act (ineffectiveness) extends to all acts that depend on it or are a consequence of it. Nullity is contagious. The process is a succession of procedural legal relations. Nullity is the absence or invalidity of one of these legal relationships. What was supposed to be a chain with links firmly linked together is broken by the declaration of nullity. The links linked by cause/effect relationship to the excluded link (recognized as non-existent or invalid) lose their effectiveness, they become detached from the chain. Original nullity is the null act. Derivative is the one incident on null acts due to dependence (consequences). Principle of conservation means that acts that have no causal relationship with nullity must be kept valid. Find forecast inarticle 282 of the CPC when dictating that “annulment of a part of the act will not harm the others that are independent of it”. There is no express reference in the law as to which act depends or whether it is a consequence of such act. It is up to the magistrate, examining the specific case, to determine to which acts the nullity extends, thus complying with article 573 : the judge pronouncing the nullity shall declare the acts to which it extends.If it is the court that decrees nullity, it is up to the court to say which acts it extends to. And if not? In this case, there is no impediment for the judge of first instance, when returning the records, to do so. Normally, nullity extends to acts subsequent to the null act, but not necessarily to all. Ineffectiveness may, exceptionally, reach acts prior to nullity. To give an example: when the court annuls the jury’s decision due to the lack of questions, the nullity extends until the opening of the trial session. When the complaint or summons is annulled, almost all subsequent procedural acts, such as questioning of witnesses, default and sentence, are declared null and must be repeated. Acts declared void, whether directly or by extension, are now regarded as non-existent. Normally, the nullity of the procedural act entails the nullity of the sentence (by extension). The criminal sentence declared void has ceased to be effective; therefore, if the defendant is imprisoned by virtue of a conviction, he will be released. If the requirements that authorize the preventive measure are present, there is no impediment for it to be maintained or applied.

Ratification, supply of omissions and renewal

Ratification, supply of omissions and renewal: Sanatoriums are the legal means by which nullities are corrected, repaired, remedied. The CPP provides for the following ways to remedy nullities: (1) supplies of omissions ( article 569 ); (2) ratification ( Article 568 ); and (3) renewal ( article 573 ). The nullities of the denouncement, the complaint, the representation can be remedied at any time before the final sentence, by supplying the omissions. Nullity due to illegitimacy of the party’s representative may be remedied at any time, through ratification of the procedural acts. To ratify is to confirm. The act performed by an illegitimate representative does not need to be renewed. It is enough for the legitimate representative to confirm the act. Article 573 provides thatthe acts whose nullity has not been remedied in the form of the previous articles will be renewed or rectified. Sometimes it is possible to correct the act. At other times – when the vice is greater, or when the act is non-existent –, the process can only be remedied by renewing it. Considering that every null act can be renewed, no nullity is irremediable. It is only when prescription is applied that it becomes impossible to correct.

Nullities of the police investigation

Nullities of the police investigation:Only nulls that occur within the process can affect it. Police inquiry is not a process. It is not part of the procedural relationship. It is an administrative law relationship that binds the State to the investigated. The process begins with the complaint or complaint. The nullities of the investigation do not affect the validity of the process. However, the nullities of the investigation can reduce its probative value, resulting in the lack of just cause for criminal action. Nullity of the investigation is not to be confused with illicit evidence. Illicit evidence generates the nullity of the evidence that derives from it. But illicit proof is not nullity, it is proof. It has the legal nature of proof. It is not uncommon to confuse illicit evidence with nullity. Illicit evidence produced in the pre-procedural phase does not affect the structure of the process, that is, it does not affect the procedural relationship, it does not, in principle, produceof the process . But it can, depending on its intensity, nullify procedural acts, penetrating and corroding the structure of the process. But, in this case, it, the illicit evidence, is not null. It provokes, generates, produces nullity. Produces, by extensive effect, nullities in the process. Illicit evidence generates the nullity of all evidence resulting from it (except for legal hypotheses excluding this extension, namely, the theory of independent source and that of the execution of the inevitable discovery), even that produced in the process when there is a causal relationship between the pre-trial and procedural evidence. Illicit evidence, once recognized, as well as the nullity of the investigation, can empty the criminal action of just cause, allowing the locking of the action. On the difference between nullity and illicit proof and the respective consequences, see the heading Distinguishing illicit proof from nullity in comments on Article 157. 

Nullity and the resources

Nullity and appeals: Whenever the judge, during the course of the proceedings, decides for the partial or total nullity of the proceedings, the interested party may appeal against this decision in the strict sense ( article 581, item XIII ). If, on the other hand, during the course of the process, nullity is not recognized in favor of the defense, habeas corpus may be filed . Whenever someone is arrested due to a process that is manifestly void, they can also make use of habeas corpus , and based on article 648, item VI of CP P. Habeas corpus can be filed even against the final conviction. Nullity can also be recognized through criminal review. The appeal will be based on theitem I of article 621 : when the condemnatory sentence is contrary to the express text of the law (nullity originates from non-compliance with the law). The Public Prosecutor’s Office does not have, after the final decision, any procedural instrument for the recognition of nullity, even when absolute.

Nullity of judgment and statute of limitations

Nullity of the sentence and prescription: Decreed by the Court, the nullity of the condemnatory sentence – either directly, or by extension of the effects of the nullity of another act –, the new sentence that comes with the renewal of the vitiated acts cannot set a higher penalty than that imposed by the annulled sentence. In this way, the prescription of the action is no longer regulated by the penalty imposed in the abstract; is governed by the penalty imposed on the annulled sentence. The application of a penalty greater than that of the annulled sentence would characterize reformatio in pejus, which is prohibited. The thesis that the annulled process disappears from the legal world – and that, consequently, one cannot consider reformatio in pejusin the case of a new sentence with a more severe penalty in relation to the previous annulled one –, it is unconvincing. Assumption of the resource is the interest. If the defense appeals, the Court, if it hears about the appeal, it is because it recognizes the existence of interest. A new sentence that establishes a more severe penalty will violate what was previously decided by the court: the presence of interest. If there is no appeal from the defense and the nullity is recognized ex officio by the court, also in this case there is recognition of interest, since if the nullity was decreed it is because the existence of interest was admitted, pursuant to article 565 .

Main conclusions regarding nullities. Summary

Main conclusions regarding the nullity system:  The main conclusions regarding nullities in criminal proceedings follow.

1 – Essential act of the process – The essential act of the process is the materialization of the general principle of criminal procedural law and which is potentially capable of influencing the truth-telling or the decision of the case.

2 – Causes of nullity – Nullity can be caused by: a – lack of essential act (absolute nullity); b – lack of requirement for the existence of an essential act (absolute nullity); c – lack of essential formality of an essential act (relative nullity).

3 – Relative nullity admits proof of non-existence of damage – In the event of nullity, damage is presumed. In absolute nullity, the damage does not admit proof to the contrary. Relatively, admit it.

4 – Types of damage – There are two types of damage: immediate and remote. Procedural typicality has a purpose. If typicality is absent, the purpose is not achieved. Failure to achieve the purpose of the act is immediate damage. Remote damage is the loss of quantity or quality of evidence.

5 – Nullity and presumption of damage – In the event of nullity, damage is presumed. The presumed damage is a requirement for the existence of nullity and, consequently, does not need to be proven.

6 – Meaning of pas de nullité sans grief – In view of the lack of essential formality, if the absence of damage is demonstrated, there is no nullity. Pas de nullité sans grief means exactly the meaning of its literality: there is no nullity without damage , that is, damage is a requirement for the existence of nullity. Therefore, it does not mean that there is only nullity if the damage is demonstrated , but rather that the nullity should not be declared only if the non-occurrence of damage is demonstrated .

7 – The burden of proving the absence of harm – The burden of demonstrating the absence of harm rests with the person who allowed the absence of an essential act or formality in the process. It is who must ensure the effectiveness of the due process and who agreed with the procedural atypicality. The burden of demonstrating the absence of prejudice is on the judge.

8 – Concept of nullity – Nullity is the procedural atypicality derived from the lack of an essential act or essential formality of an essential act that entails presumption of damage to the party. From the point of view of the interior of the process, nullity is the lack or invalidity of an essential legal relationship, with the consequent damage caused by the non-realization of the right contained in the legal relationship.

Other definitions and conclusions:

1 – Nullity as a sanction – Regarding its legal nature, nullity is a sanction. It is the provision of the sanctioning norm that applies when the provision of the sanctioned norm is not carried out.

2 – Plans of existence, validity and effectiveness – With regard to the effects, it is indifferent whether the null act exists or not. Strictly speaking, the non-existent act exists. The null act is invalid. It is, however, effective as long as the nullity is not recognized in court.

3 – Effects of judicial recognition of nullity – Judicial recognition of nullity has the effect of deconstructing the effectiveness of the act.

4 – Absolute and relative nullities. Differentiation – Absolute nullity stems from the lack of an essential act. It can and must be recognized in any instance, even against res judicata. The relative stems from the absence of the essential formality of an essential act. If it is not claimed in a timely manner, the penalty of estoppel applies.

5 – The interest to argue nullity is dispensable – Both parties can argue relative nullities, but the effect of the argument – ​​that of removing the estoppel – only affects when the argument is made by the immediately interested party.

6 – The influence of the act on the decision of the case and the verification of the substantial truth – Article 565 means that, if there is proof that the omitted act or formality did not influence the verification of the truth or the decision, there is no nullity.