Art. 97. The judge who spontaneously asserts suspicion must do so in writing, stating the legal reason, and will immediately forward the case to his substitute, after summoning the parties.
Suspicion and impediment due to abstention
Suspicion and impediment due to abstention: The judge who spontaneously recognizes his suspicion practices an act called abstention , as commented in the annotations to article 96 . The abstention is effected in writing, as it must be motivated and with the indication of the relevant legal provisions, with a view to preserving the observance of the principle of the natural judge. Subsequently, the judge who abstained must forward the case records to his substitute, summoning the parties. Impediment and incompatibility by abstention (and by exception) follow exactly the same rules, as provided in article 112 of the CPP.
Recognition of suspicion or impediment and absence of appeal
Absence of appeal against the recognition of suspicion or impediment: The legislation does not grant the parties any appeal against decisions that recognize suspicion or impediment, whether they are the result of exception or abstention. Article 581, item III of the CPP, admits an appeal in the strict sense of the decision that upholds the exceptions, “except for suspicion ”. Once the suspicion is upheld, that is to say, the magistrate recognizing himself as a suspect (article 99 of the CPP), there is no appeal in the strict sense or any other appeal. There is no way to oblige the magistrate to prosecute and judge a claim in which he himself says he does not have the necessary partiality to officiate. If he considers himself devoid of the essential impartiality to preside over and judge the case, no one is authorized to say the opposite. Remembering: the rules of suspicion apply to cases of impediment and incompatibility (Article 112 of the CPP).
Remittance of the records to the legal substitute
Remittance of the records to the legal substitute and principle of the natural judge: It is the norms of judicial organization (judicial organization law, provisions, resolutions) that indicate which judge replaces which judge. In the event of abstention by the suspected or impeded judge, the records must be sent to the legal substitute judge. That judge cannot be just anyone. The court cannot arbitrarily appoint one to the case. The magistrate must have previously been invested by means of a formal act with the role of substitute. Otherwise, there will be a violation of the principle of the natural judge, which leads to the nullity of the process. Faced with the suspicion of the competent judge, a magistrate cannot be handpicked to prosecute and judge the case. And observe, the practice of this irregularity, better said, nullity, is not at all uncommon. On the contrary, it is very common. About the subject, Justice José Maurício Pinto de Almeida believes that “of the few authors who deal with the subject, Adelino Marcon draws attention to the application of the Principle of the Natural Judge also to the substitute: “The legal substitute must be the one already invested (pre-invested) in the substitute functions, because, on the contrary, the principle would be violated with random assignments. This is one of the reasons why Judicial Sections exist as units of judicial division in our State.” The topic is highly relevant, as there are numerous situations in which judges are replaced by magistrates who are not their legal substitutes ( “The legal substitute must be the one already invested (pre-invested) in the functions of substitute, because, on the contrary, the principle would be violated with random assignments. This is one of the reasons why Judicial Sections exist as units of judicial division in our State.” The topic is highly relevant, as there are numerous situations in which judges are replaced by magistrates who are not their legal substitutes ( “The legal substitute must be the one already invested (pre-invested) in the functions of substitute, because, on the contrary, the principle would be violated with random assignments. This is one of the reasons why Judicial Sections exist as units of judicial division in our State.” The topic is highly relevant, as there are numerous situations in which judges are replaced by magistrates who are not their legal substitutes (José Maurício Pinto de Almeida – Natural Substitute Judge ).
José Maurício Pinto de Almeida: Natural substitute judge . searchlegis.ufsc.br “The importance attributed to the Natural Judge must be given, to the same extent, to the substitute magistrates (…) this topic is of high relevance, since there are countless situations in which judges are substituted by magistrates who are not their legal substitutes (…) there must be a substitute judge who is legally competent and known to act in the records, since, on the contrary, any designation without previously established criteria will result in disobedience to the Principle of the Natural Judge”.++
Moment for recognition of suspicion and nullities
Moment for acknowledging the suspicion: The causes of impediment (Articles 252 and 253 of the CPP) and suspicion (Article 254 of the CPP) are related either to the fact imputed to the accused, or to the parties participating in the procedural relationship. The magistrate must be suspected, or prevented, as soon as he becomes aware of the existence of one of these causes. Normally, this knowledge comes to the judge either when the complaint is filed (Article 396 of the CPP), or when the accused receives a response (Article 396-A). However, at this stage, there may be no suspicion. The suspicion is verified, sometimes, in the course of the process, due to supervening cause. For example, in the hypothesis of article 254, item II, a descendant of yours may respond, in the course of the process presided over by the initially unsuspected magistrate, to a process for similar fact, whose criminal character is disputed. From that moment on, the magistrate becomes a suspect.
Nullities: Obviously, when the suspicion is supervening, and having been immediately recognized, there is no nullity of the acts prior to its cause.
Negative conflict of jurisdiction
Negative conflict of jurisdiction: Upon receiving the records, the substitute judge may understand that the one who sent him the case is not a suspect. He must then raise a negative conflict of jurisdiction (article 114, item I, with article 115, item III).
Disappropriation of the negative conflict of jurisdiction in the face of suspicion for intimate reasons: In the case of suspicion for intimate reasons, the magistrate is not obliged to declare the reasons and foundations of his decision (see the subtitle Reason for intimate forum in the title Suspection of the judge, in comments to article 254). The reason that the judge is not obliged to state the reason is that he could prefer to stay ahead of the process, rather than having to confess the intimate, sometimes embarrassing, reasons for withdrawing from the process, which would come in prejudice to the impartial administration of justice. An example is given: the magistrate’s daughter who maintains an adulterous love relationship with the plaintiff. When the suspicion is verified for reasons of intimate nature, it is inappropriate for the substitute judge to raise the negative conflict of jurisdiction, since, in view of the lack of motivation for the decision, there are no elements to judge whether it is legitimate or not.