Art. 95. The exceptions of:
I – suspicion;
II – incompetence of judgment;
III – lis pendens;
IV – illegitimacy of the party;
V – res judicata.
Jurisdiction, action and exception
The term “exception” in a broad sense: The process, from the point of view of its structure, is a legal relationship. It is a single legal relationship: the action related to the jurisdiction. But composed of several sub-relations derived from action and jurisdiction. On the one hand, there is the action of the MP directed at the judge (and the related power of the judge directed at the MP). On the other hand, there is the action of the defense, which is also addressed to the magistrate. The defense action is called an exception. The process is action, jurisdiction and the relationship (legal – purposeful pleonasm) between both. These are the three elements of the process. The action, isolated, is distinct from the process. Jurisdiction too. But action and jurisdiction, related (legally – purposeful pleonasm), are the process. The process is a legal relationship that links the parties to the judge, that is, the action (and exception is action) to the jurisdiction. By the way, if it is to define process in the shortest possible way, it is the relationship between the action and the jurisdiction. In conclusion, exception is, therefore, the right of defense of the accused directed to the judge. All other rights of defense derive from it, such as, for example, the right to offer prior defense, to enlist witnesses, to question witnesses, to be notified of hearings, to be present at hearings, to be questioned, to appeal, to reason the resource, and so on. Each right corresponds to a duty of the jurisdiction (they are legal relationships). The rights/powers of the jurisdiction are also very diverse, to which the duties of the subjects of the procedural relationship correspond. In a separate chapter, we will explain the reasons why the legal relationship is not triangular, and the subjects of the procedural relationship are not just the parties, but also experts, interpreters, notary, superior jurisdiction, etc. l
Objection, dilatory and peremptory exceptions
Objection and exception: The doctrine reserves the expression objection for those matters that can be declared ex officio by the judge, regardless of provocation by the parties. The exception would deal with a question that cannot be known ex officio by the judge. This doctrine is civil procedural, and has little practical use in criminal proceedings, even more so considering the letter of the codified criminal procedural text, whose exceptions can all be known ex officio, including the lack of competence, as long as there is no extension.
Dilatory and Peremptory Exceptions: Dilatory exceptions amplify, expand, dilate the process. Not necessarily in time, since, in principle, the main proceedings are not suspended (in case of suspicion it may eventually be suspended). But they dilate in the sense that they generate more procedural acts, albeit incidental and in separate records. The peremptory exception, on the other hand, aims to allow, extinguish, eliminate the punitive claim. Peremptory, among other meanings, is that which is definitive, terminative.
Who’s who: The exceptions of suspicion and incompetence are dilatory. They do not end the process. They are processed in separate records and, as a general rule, the main process is not suspended ( article 111). Once the incident has been resolved, if deemed unfounded, it is archived. If appropriate, the criminal proceedings are sent to the substitute judge (in the case of suspicion), or the competent one (in the event of incompetence), where he will resume his normal procedure. The lis pendens and res judicata exceptions are peremptory. However, it should be noted that the peremptory effect of the lis pendens exception is not always verified in the process in which it is accused, since the process that may have preference to continue active may be precisely the one that was excepted. With regard to the exception of party illegitimacy, the exception is sometimes dilatory, sometimes it is peremptory. It depends on the case. If the MP files a complaint in a private action crime, the exception is peremptory, since the MP lacks legitimacy, and such nullity cannot be corrected. If the complaint is filed by an offended person under the age of 18, the exception of illegitimacy is dilatory. The act may be corrected with the intervention of the minor’s representative.
