Art. 96. The allegation of suspicion shall precede any other, except when founded on supervening grounds.
Abstention, exception and the precedence of suspicion
Abstention and exception: The term abstention has not been used by the doctrine. And even less by jurisprudence. One of the few processualists who uses it is Renato Marcão. It’s a very appropriate expression. The judge who spontaneously acknowledges his suspicion is abstaining. It should be noted that this is not the creation of a criminal proceduralist – and it could well be, as Renato Marcão does not lack intelligence and creativity –, the CPP in article 112 refers to this term: “(…) abstention, the incompatibility or impediment may be argued by the parties (…)”. Interestingly, this is the only time the CPP uses the word abstention. It is an appropriate expression, as it means renunciation, refusal, repudiation. If there is suspicion on the part of the judge, and absent abstention, it is appropriate for the party to file an exception of suspicion.
The allegation of suspicion precedes any other: The exceptions referred to in Article 95 are all filed, their respective causes being present at the same time. Better explained, what this article 96 means is not that first the suspicion is raised and then the others. What it means is that first the allegation of suspicion is judged and decided, in case others have been filed concomitantly. For example, having filed exceptions of incompetence and suspicion, first the suspicion must be judged, not the reverse. And the reason for that is that it doesn’t make any sense to spend time, money and Kbytes (no more paper) to process and judge the exception of incompetence, and then, later on, annul the entire procedure with the recognition of the suspicion. If necessary, only an unsuspecting judge can judge the other exceptions.
Suspicion, impediment and intimate reason
Suspicion and impediment: Cases of suspicion are described in article 254 of the CPP . Those of impediment, in articles 252 and 253 . What distinguishes one from the other is that, in cases of suspicion, the interest of the judge related to the party is presumed, and, in cases of impediment, the interest is associated with the cause. Both the causes of suspicion and impediment admit the analogy and extensive interpretation (see subheading Non-exactness in the heading Impeachment of the judge , in comments to article 252). The exception of impediment follows the same procedural rules as the exception of suspicion ( article 112 ).
Intimate reason: The judge may also be suspected for intimate reasons. See subheading Reason for intimate forum under the heading Suspection of the judge, in comments to article 254.
Doctrine
Adriano Gouveia Lima : The breach of impartiality as a basis for an exception of suspicion . Legal Scope
Afrânio Silva Jardim: Adversarial procedural system, impartiality of judges and rule of law. Reflections. . Emporium of law.
Jurisprudence
Contact of circumstances in civil or administrative proceedings does not prevent a judge from acting in criminal proceedings: The judge of criminal proceedings – even if he or she has had contact with evidence or analyzed the circumstance from the perspective of administrative or civil proceedings – is not contaminated to carry out a jurisdictional analysis later, in which another legal framework will be applied with ample defense and contradictory ( HC 120.017/SP, rel. min. Dias Toffoli, judged on 5/27/2014, judgment published in the DJE of 8/8/2014 – Newsletter 748, First Class).
Compromise of impartiality and impartiality in the exercise of the judiciary constitute just cause for the precautionary removal of a magistrate magistrate from exercising his functions ( MS 32.721/DF, rel. Min. Cármen Lúcia, judged on 11/11/2014, decision published in the DJE of 2/11/2015 – Newsletter 767, Second Panel).
Eventual nullities that occurred in the Jury’s Plenary, resulting from impediment or suspicion of jurors, must be argued at the appropriate time, under penalty of estoppel. Source: jurisprudence in theses (STJ).
Judgments:
HC 208900/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/11/2016, DJE 11/08/2016
AgRg in REsp 1366851/MG, Rel. Minister Nefi Cordeiro, judged on 10/04/2016, DJE 10/17/2016
HC 342821/RO, Rel. Justice Felix Fischer, Fifth Panel, judged on 03/15/2016, DJE 04/01/2016
AgRg in REsp 1500980/RS, Rel. Minister Maria Thereza de Assis Moura, judged on 03/17/2015, DJE 03/24/2015
HC 139835/SP, Rel. Minister Campos Marques (Judge summoned from the TJ/PR), Fifth Panel, judged on 08/27/2013, DJE 09/02/2013
HC 167133/SC, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/27/2011, DJE 10/28/2011
Firmness of the judge and breach of impartiality: Conducting the interrogation of the defendant in a firm manner during the jury does not necessarily mean breaching the impartiality of the magistrate and negatively influencing the jurors ( HC 410.161-PR, Reporting Min. Maria Thereza de Assis Moura, unanimously, judged on 04/17/2018, DJe 04/27/2018 – Newsletter 625).
Suspicion and characterization of capital enmity: The cause of suspicion relating to capital enmity in relation to one of the parties (article 254 c/c 258, both of the Code of Criminal Procedure) does not consist of a mere allegation of animosity, requiring an indication of the plausibility that the agent acts motivated by reasons of hatred, resentment or revenge ( AS 89 AgR, rel. min. Edson Fachin, DJE of 1-2-2019).
Suspicion associated with advice: The hypothesis of suspicion associated with advice from one of the parties (article 254 c/c 258, both of the CPP), in addition to assuming that the public agent reveals his position regarding the object of an eventual demand, challenges personal participation the one who is identified as a suspect ( AS 89 AgR, rel. min. Edson Fachin, DJE of 1-2-2019).
