Art. 98. When either party intends to refuse the judge, it must do so in a petition signed by itself or by a prosecutor with special powers, adducing its reasons accompanied by documentary evidence or the list of witnesses.
Exception of suspicion, power of attorney with special powers and witnesses
Who can refuse the judge: The judge can be refused by means of a written petition signed by any of the parties, that is, MP, accused, plaintiff, defendant and assistant to the prosecution. Article 271 provides that the assistant to the prosecution is allowed to propose means of proof, request questions from witnesses, add the libel and the pleadings, participate in the oral debate and reason the appeals filed by the Public Ministry, or by itself, in the cases of articles 584, § 1 , and 598. This list of acts is not exhaustive, since it cannot be required that, in just one provision of the Code, the legislator lists all the procedural acts that can be performed by the assistant. If required, it would be an extremely extensive device. In all evidence, article 271 is exemplary.
Power of attorney with special powers: To file an exception of suspicion, the party must grant the attorney power of attorney with special powers. A power of attorney is not enough for the “criminal defense”, or with the ad judicia clause (for the forum in general). It needs express powers to argue the judge’s suspicion. The reason for this caution by the legislator is that, depending on the content of the reasons alleged to support the judge’s suspicion, it may be characterized as a crime against honor. If there is a power of attorney with special powers, there is no way for the grantor to exempt himself from his responsibility, saying that he did not give any authorization to the attorney to argue the exception. A public defender is a lawyer who belongs to the public defender’s office. He does not defend with power of attorney. In order to exclude suspicion, he needs a power of attorney with special powers, or else, that the accused sign along with the petition for exception of suspicion. A dative defender is the one appointed by the magistrate to defend the accused who does not have a lawyer and does not want to hire one. If the accused has financial conditions, the choice of lawyer should fall on a lawyer, and not on the Public Defender, since the latter has the duty to defend only those in need (it constitutes a deviation from duty if the Public Defender defends accused who are able to pay private lawyer). The dative lawyer, being appointed, to enter with exception of suspicion needs, as well as the Public Defender, either a power of attorney with special powers, or that the accused sign along with the exception petition.
Number of witnesses: As for the maximum number of witnesses, three are admitted per fact ( article 357, paragraph 6, of the CPC , applied by analogy).
Doctrine
Jomar Martins : A public defender needs a specific power of attorney to allege suspicion of a judge . Conjure
Jurisprudence
Power of attorney with special powers to file an exception of suspicion: A power of attorney with special powers is required to file an exception of suspicion by a defendant represented by the Public Defender’s Office, even if the accused is absent from the district of guilt ( REsp 1.431.043- MG, Rapporteur Justice Maria Thereza de Assis Moura, judged on 4/16/2015, DJe 4/27/2015 – Bulletin 560 ).
Opportune moment for argument and not estoppel
Appropriate moment: As soon as the party must manifest itself in the records, it must argue the suspicion. Thus, if the judge already has cause for suspicion before starting the process, the Public Prosecution Service must file the exception of suspicion in a separate document, together with the complaint. As for the accused, he must make an exception within the period of the written defense, and his petition will be processed separately ( article 396-A, paragraph 1 ). If the suspicion is verified in the course of the process, the parties must argue it as soon as they become aware of it.
Absence of timely argument and absolute nullity: The absence of timely argument does not imply estoppel. The claim can be made at any time. The judge’s lack of suspicion, that is, the guarantee and certainty of his impartiality, constitutes an essential, structural, basic act of the process. Therefore, suspicion implies absolute, incurable nullity ( article 564, item I ). The damage is not questioned. The damage is presumed, and, as it is the absence of a structural act in the process, demonstration to the contrary is not allowed.
Exception of suspicion of the judge and the MP at the investigation stage
Exception of suspicion of the judge and the Public Prosecutor’s Office at the investigation stage: Guilherme Nucci, perspicaciously, realizes that the exception of suspicion can be filed at the investigation stage. Both against the judge and against the MP. He comments that “it seems to us that the judge, as well as the prosecutor, impeded person or suspect, should distance himself from the investigation, since he exercises very valuable supervision over police activity. It would not be feasible to have a partial judge at the head of an investigation, which could enact fundamental precautionary measures, such as preventive detention, breach of bank or tax secrecy, as well as search and seizure. Incidentally, article 107 of the CPP it stipulates that even the suspected police authority must withdraw from the investigation, although the objection of suspicion does not fit against them. Thus, the investigated person, feeling harmed, must present an exception of suspicion or impediment against the magistrate or against the prosecutor who acts in the investigation phase, if there is no spontaneous withdrawal from the case” (Nucci, Guilherme de Souza. Code of Criminal Procedure Commented 13th Edition Grupo Editorial Nacional: 2014).
