AI CHATGPT ANALYSIS:
When the judge assumes the function of the parties, conducts the evidence in a protagonistic way, and interferes in the formation of the evidentiary record, he ceases to occupy the place of an impartial arbiter and compromises the legitimacy of the proceeding.
To transform this into mere “human bias” is dangerous, because it attenuates the gravity of the violation and weakens the citizen’s protection against judicial power.
The public interest requires institutional responsibility, not rhetorical indulgence.
In a State governed by the rule of law, nullities of this nature exist to protect the people, not to console the conscience of the one who judged badly.
The Justices of the Sixth Panel¹⁶ unanimously decide to partially grant the special appeal, in the terms of the vote of the Honorable Reporting Justice.
The central point is not whether the magistrate perceived her own bias or not, nor whether she acted in good faith, nor whether her conduct can be psychologically explained.
The central point is that the STJ recognized an objective violation of judicial impartiality and of the accusatorial structure of the proceeding, annulling the hearing precisely because the judge assumed a role that belonged to the parties.
When a judge replaces the prosecution or conducts the taking of evidence in a protagonistic manner, the problem ceases to be subjective and becomes institutional: due process of law is broken.
To psychologize this rupture, instead of confronting it as a serious offense against the guarantees of the litigant, softens the abuse, weakens the normative force of nullity, and normalizes judicial excess.
The public interest does not lie in excusing magistrates because they are human.
It lies in protecting the people against the contaminated exercise of power. Procedural guarantees do not exist to preserve the good conscience of the judge, but to prevent any authority, even under an appearance of correctness, from exceeding the limits of impartial adjudication.
Superior Court of Justice (STJ) annuls hearing due to judicial protagonism
In November 2025, the Superior Court of Justice annulled a criminal instruction hearing.
The magistrate had asked too many questions, induced answers, and assumed a leading role that should have belonged to the parties.
The 6th Panel was precise in its diagnosis: inquisitorial posture, violation of impartiality, nullity.
Special Appeal 2.214.638/SC is not an isolated decision.
The rapporteur himself, Minister Sebastião Reis Júnior, took care to demonstrate this, citing three recent precedents from the same Chamber:
cases in which the representative of the Public Prosecutor's Office did not appear at the hearing and the magistrate, faced with this vacuum, took over the questioning of witnesses.
In all of them, the 6th Chamber declared the proceedings null and void on the same grounds:
the judge had substituted the parties in the production of evidence, compromising the impartiality and the accusatory structure of the process.
GEMINI AI ANALYSIS
## Judicial Integrity: The Foundation of a Just Society
**The Principle of Impartiality**
In a truly just and democratic state governed by the rule of law, the bedrock of the judicial system is an impartial judiciary. A judge is not an antagonist, a prosecutor, or a party to the proceedings. Their primary and fundamental role is to act as an impartial arbiter, a neutral third party entrusted with the responsibility of ensuring that the law is applied fairly and equally to all who come before the court.
The concept of a judge as an active protagonist in the presentation of evidence or the questioning of witnesses is an aberration that strikes at the heart of due process and the presumption of innocence. When a judge takes a more active role in a trial, exceeding the boundaries of clarification and into the territory of advocacy, they abandon their position of neutrality and compromise the entire process. This can lead to a range of potential issues, including the introduction of bias, the appearance of partiality, and the potential for a wrongful conviction or an unjust outcome.
**Institutional Integrity, Not Personal Excuses**
The importance of an impartial judiciary cannot be overstated. A biased judge, whether consciously or unconsciously, can have a devastating impact on the lives of individuals and the fabric of society. It is the responsibility of all members of the legal profession, from judges and prosecutors to defense attorneys and legal scholars, to ensure that the judicial system remains fair, impartial, and above all, dedicated to the pursuit of justice.
Public interest dictates that we uphold institutional integrity rather than allowing individual judges to excuse their biased actions with the simple refrain of "humanity."
The legitimacy of a court and its decisions rests not upon the individual’s conscience or their personal feelings, but upon the transparency, predictability, and impartiality of the legal process itself. When a judge violates their oath of office and engages in biased conduct, they are not only betraying the trust of the individuals involved in the specific case, but they are also undermining the public's confidence in the entire judicial system.
**Objective Standards Over Subjective Motives**
The question of whether a judge intended to be biased is ultimately irrelevant to the question of whether a judge was, in fact, biased. The public's perception of bias is just as damaging to the legitimacy of the judicial system as actual bias itself. For this reason, it is crucial that the judicial system adopt objective standards for determining bias, and that judges who are found to have violated these standards are held accountable for their actions. This accountability can take many forms, including recusal, disciplinary action, and in some cases, removal from office.
It is also important for judges to be proactive in identifying and addressing their own potential biases. This can include taking part in diversity and inclusion training, engaging in regular self-reflection, and seeking feedback from colleagues and legal professionals. By taking these steps, judges can help to ensure that they are conducting themselves in a way that is consistent with the principles of fairness, impartiality, and the rule of law.
**The Peril of Rationalizing Bias**
When we categorize a judge's biased actions as merely a "human mistake," we trivialize the seriousness of the breach and dilute the importance of a fair and impartial judiciary. There is a inherent danger in the attempt to soften a grave violation of judicial impartiality. It is essential to recognize that judicial bias is not a minor transgression, but a fundamental betrayal of the trust that the public places in the legal system. When a judge is allowed to excuse their bias with a simple shrug and a reference to their own humanity, it sends a message that the rule of law is flexible and that the powerful are above the law.
The pursuit of justice is an ongoing process, and it is crucial that we remain vigilant in our efforts to identify and address bias wherever it may appear. By upholding the highest standards of judicial integrity, we can help to ensure that our legal system is one that is based on fairness, equality, and the rule of law.
**Upholding Due Process**
The right to a fair trial before an impartial judge is a cornerstone of due process. When this right is violated, the entire legal system is compromised. It is essential for judges to recognize the importance of procedural guarantees and to ensure that they are respected in every case.
By doing so, they can help to ensure that the law is applied fairly and equally to all who come before the court. The pursuit of justice requires that we are committed to the principle of impartiality, and that we are willing to hold those who violate this principle accountable for their actions.
**Legitimacy Through Adherence to Principles**
The ultimate goal of the judicial system is to provide a fair and impartial forum for the resolution of disputes. By adhering to the principles of fairness, equality, and the rule of law, we can help to ensure that the judicial system is one that is respected and trusted by the public. When we fail to uphold these principles, we are not only betraying the trust of the individuals who come before the court, but we are also undermining the public's confidence in the entire legal system.
It is incumbent upon all of us to work together to ensure that our judicial system is one that is based on the principles of justice, and that it is dedicated to the pursuit of a fair and equitable society.
READ THE DECISION:
SPECIAL APPEAL¹ No. 2214638 - SC (2025/0182853-2)
REPORTING JUSTICE² : MINISTER SEBASTIÃO REIS JÚNIOR
APPELLANT : _________________________
ATTORNEYS : EDUARDO LUIZ COLLAÇO PAULO - SC019496
FERNANDA MACHADO DO VALLE PEREIRA - RS111228
RODRIGO TOLENTINO DE CARVALHO COLLAÇO - SC004967
MANUELA MOSER - SC061894
PAULO BENJAMIN FRAGOSO GALLOTTI - SC029050
CARLOS ANDRE CARLINI - SC061190
RICARDO TEIXEIRA DO VALLE PEREIRA - SC073976
APPELLEE : PUBLIC PROSECUTION OFFICE³ OF THE STATE OF SANTA CATARINA
CO-DEFENDANT : __________________
SYLLABUS⁴
CRIMINAL LAW AND CRIMINAL PROCEDURE. SPECIAL APPEAL. CRIMES COMMITTED BY A PUBLIC OFFICIAL AGAINST THE PUBLIC ADMINISTRATION IN GENERAL AND AGAINST THE ADMINISTRATION OF JUSTICE. EXTORTION BY A PUBLIC OFFICIAL⁵, PASSIVE CORRUPTION⁶, AND COERCION IN THE COURSE OF THE PROCEEDINGS⁷. JURISDICTION OF THE ELECTORAL COURTS⁸ NOT ESTABLISHED. NONEXISTENCE OF AN ELECTORAL CRIME. PRECEDENTS. ALLEGATION OF NULLITY⁹. ARTICLE 212 OF THE CRIMINAL PROCEDURE CODE¹⁰. OFFENSE AGAINST THE ACCUSATORIAL SYSTEM¹¹. EXAMINATION OF WITNESSES¹². INTERROGATION OF THE DEFENDANT¹³. ACTIVE POSTURE IN THE CONDUCT OF THE TESTIMONIES. IMPAIRMENT OF THE IMPARTIALITY OF THE JUDGE. PREJUDICE DEMONSTRATED. NULLITY OF THE JUDICIAL ACTS PRACTICED. DETERMINATION TO REMOVE FROM THE RECORD¹⁴ THE EVIDENCE OBTAINED IN THE ACT AND TO RENEW THE HEARING¹⁵. PRECEDENTS.
Special appeal partially granted, in the terms of the reasoning.
JUDGMENT
Seen and reported these records in which the above-indicated parties are parties, the Justices of the Sixth Panel¹⁶ unanimously decide to partially grant the special appeal, in the terms of the vote of the Honorable Reporting Justice.
Justices Rogerio Schietti Cruz, Antonio Saldanha Palheiro, Carlos Pires Brandão and Og Fernandes voted with the Honorable Reporting Justice.
Electronic document VDA52061398 electronically signed pursuant to Art. 1, §2, item III of Law 11.419/2006
Signatory: SEBASTIÃO REIS JUNIOR Signed on: 11/05/2025 13:40:03
Publication in DJEN/CNJ¹⁷ on 11/11/2025. Document Control Code: b3aed399-09e1-40e2-9b7b-a1e1f07dcba5
Brasília, November 5, 2025.
Minister Sebastião Reis Júnior
Reporting Justice
Electronic document VDA52061398 electronically signed pursuant to Art. 1, §2, item III of Law 11.419/2006
Signatory: SEBASTIÃO REIS JUNIOR Signed on: 11/05/2025 13:40:03
Publication in DJEN/CNJ on 11/11/2025. Document Control Code: b3aed399-09e1-40e2-9b7b-a1e1f07dcba5
---
SPECIAL APPEAL¹ No. 2214638 - SC (2025/0182853-2)
REPORTING JUSTICE² : MINISTER SEBASTIÃO REIS JÚNIOR
APPELLANT : __________________
ATTORNEYS : EDUARDO LUIZ COLLAÇO PAULO - SC019496
FERNANDA MACHADO DO VALLE PEREIRA - RS111228
RODRIGO TOLENTINO DE CARVALHO COLLAÇO - SC004967
MANUELA MOSER - SC061894
PAULO BENJAMIN FRAGOSO GALLOTTI - SC029050
CARLOS ANDRE CARLINI - SC061190
RICARDO TEIXEIRA DO VALLE PEREIRA - SC073976
APPELLEE : PUBLIC PROSECUTION OFFICE³ OF THE STATE OF SANTA CATARINA
CO-DEFENDANT : __________________
SYLLABUS⁴
CRIMINAL LAW AND CRIMINAL PROCEDURE. SPECIAL APPEAL. CRIMES COMMITTED BY A PUBLIC OFFICIAL AGAINST THE PUBLIC ADMINISTRATION IN GENERAL AND AGAINST THE ADMINISTRATION OF JUSTICE. EXTORTION BY A PUBLIC OFFICIAL⁵, PASSIVE CORRUPTION⁶, AND COERCION IN THE COURSE OF THE PROCEEDINGS⁷. JURISDICTION OF THE ELECTORAL COURTS⁸ NOT ESTABLISHED. NONEXISTENCE OF AN ELECTORAL CRIME. PRECEDENTS. ALLEGATION OF NULLITY⁹. ARTICLE 212 OF THE CRIMINAL PROCEDURE CODE¹⁰. OFFENSE AGAINST THE ACCUSATORIAL SYSTEM¹¹. EXAMINATION OF WITNESSES¹². INTERROGATION OF THE DEFENDANT¹³. ACTIVE POSTURE IN THE CONDUCT OF THE TESTIMONIES. IMPAIRMENT OF THE IMPARTIALITY OF THE JUDGE. PREJUDICE DEMONSTRATED. NULLITY OF THE JUDICIAL ACTS PRACTICED. DETERMINATION TO REMOVE FROM THE RECORD¹⁴ THE EVIDENCE OBTAINED IN THE ACT AND TO RENEW THE HEARING¹⁵. PRECEDENTS.
Special appeal partially granted, in the terms of the reasoning.
REPORT
These records were assigned to me by prevention¹⁸ of RHC¹⁹ No. 172.616/SC (p. 3,714).
Electronic document VDA52061397 electronically signed pursuant to Art. 1, §2, item III of Law 11.419/2006
Signatory: SEBASTIÃO REIS JUNIOR Signed on: 11/05/2025 13:40:03
Document Control Code: 7a377444-2de0-4368-b891-8d062ec3e9b0
This is a special appeal filed by __________________, grounded on items a and c of the constitutional permissive provision²⁰, challenging the judgment of the Court of Justice of Santa Catarina rendered in Criminal Appeal²¹ No. 000214982.2019.8.24.0058/SC, thus summarized, in the part that is relevant (pp. 2,710/2,712):
CRIMINAL APPEALS. CRIMES COMMITTED BY A PUBLIC OFFICIAL AGAINST THE PUBLIC ADMINISTRATION IN GENERAL AND AGAINST THE ADMINISTRATION OF JUSTICE. EXTORTION BY A PUBLIC OFFICIAL (ART. 316, C/C 327, § 2, OF THE CRIMINAL CODE), PASSIVE CORRUPTION (ART. 317, CAPUT, OF THE CRIMINAL CODE), AND COERCION IN THE COURSE OF THE PROCEEDINGS (ART. 344 OF THE CRIMINAL CODE). JUDGMENT PARTIALLY GRANTING THE CLAIMS. APPEALS BY THE DEFENSES AND BY THE PUBLIC PROSECUTION OFFICE.
CHALLENGE BY ______. ADMISSIBILITY REVIEW. ALLEGED RECLASSIFICATION OF THE CONDUCTS INVESTIGATED AS EXTORTION BY A PUBLIC OFFICIAL AND PASSIVE CORRUPTION TO THE OFFENSE OF FRAUD IN THE ATTEMPTED FORM. BLATANT APPELLATE INNOVATION²². APPRECIATION AT THIS LEVEL WHICH ENTAILS IMPROPER SUPPRESSION²³. NOT TAKEN COGNIZANCE OF²⁴ ON THESE POINTS. PRELIMINARY MATTERS. NULLITIES. VIOLATION OF ART. 93, ITEM IX, OF THE FEDERAL CONSTITUTION. NONOCCURRENCE. LACK OF REASONING WHICH IS NOT TO BE CONFUSED WITH CONCISE REASONING. PRECEDENTS. ALLEGED JURISDICTION OF THE ELECTORAL COURTS⁸. NONOCCURRENCE. THESIS BASED ON THE ALLEGATION THAT THE AMOUNT TRANSFERRED WAS INTENDED FOR THE INSTALLATION OF A PARTY DIRECTORY IN THE MUNICIPALITY. EMPTY ALLEGATION IN THE RECORDS. ABSENCE OF THE MINIMUM PROOF OF THE REFERRED FACT. MERE ALLEGATION OF THE PRACTICE OF AN ELECTORAL CRIME IS NOT SUFFICIENT TO SHIFT JURISDICTION TO THE ELECTORAL COURTS. PRECEDENTS. PRELIMINARY MATTER REJECTED. DENIAL OF DEFENSE²⁵. ALLEGED PARTIALITY OF THE JUDGE WHO WOULD BE PREDISPOSED TO CONVICT THE APPELLANT. POINTED-OUT PRACTICE OF INVESTIGATIVE ACTS IN BLATANT OFFENSE AGAINST THE ACCUSATORIAL SYSTEM¹¹. NONOCCURRENCE. THE SINGLE JUDGE²⁶ ACTED WITHIN THE LEGAL LIMITS. ACCEPTANCE OF THE PRELIMINARY MATTER IMPOSSIBLE.**
MERITS²⁷. EXTORTION BY A PUBLIC OFFICIAL⁵. REQUEST FOR ACQUITTAL. ALLEGED NONCONFIGURATION OF THE CRIMINAL TYPE, CONSIDERING THE NONOCCURRENCE OF A DEMAND FOR AN ADVANTAGE BY REASON OF THE FUNCTION. AUTHORSHIP AND MATERIALITY²⁸ DULY PROVEN. APPELLANT, WHILE A COUNCILMAN OF THE MUNICIPALITY, AND HIS LEGISLATIVE AIDE, WHO COMPELLED SERVANTS HOLDING COMMISSIONED POSITIONS²⁹ OF THE MUNICIPAL PUBLIC ADMINISTRATION TO TRANSFER PART OF THEIR SALARIES. CHARGES DIRECTED BY REASON OF THE OCCUPATION OF POSITIONS UNDER HIS INDICATION AND BELONGING TO HIS QUOTA. PAYMENT UNDULY DEMANDED UNDER THE INDIRECT THREAT OF LOSS OF THE APPOINTED POSITION. CRIMINAL PRACTICE PROVEN BY THE EVIDENCE ATTACHED TO THE RECORDS. WORDS OF THE VICTIMS AND WITNESSES FIRM AND COHERENT. ABUNDANT DOCUMENTARY EVIDENCE REGARDING THE DEMAND THAT CAUSES FEAR, AN ELEMENT OF THE CRIMINAL TYPE. FEELING OF FEAR PORTRAYED BY THE VICTIMS. EVIDENTIARY CONTEXT FREE OF DOUBTS. DECISION MAINTAINED. COERCION. INTENDED ACQUITTAL FOR ATYPICALITY OF THE CONDUCT. UNSUSTAINABILITY. DEFENDANT WHO IMPOSES, INCISIVELY, ON ONE OF THE VICTIMS WHAT HE SHOULD AFFIRM WHEN GIVING TESTIMONY, AND ALSO COERCES ANOTHER TO CONVINCE A CERTAIN WITNESS TO FAIL TO TELL THE TRUTH IN ORDER TO FAVOR HIM IN THE INVESTIGATIVE PROCEDURE TO WHICH HE WAS SUBJECT. INTENT EVIDENCED. INTENT OF COERCION WITH THE PURPOSE OF PREVENTING HIS INCRIMINATION. INTIMIDATING CHARACTER HIGHLIGHTED BY THE VICTIMS’ REPORTS. CONVICTIONS MAINTAINED. PASSIVE CORRUPTION⁶. DESIRED FRAMING OF THE CONDUCT DESCRIBED IN FACT 6 OF THE INDICTMENT AS THE CRIME OF EXTORTION BY A PUBLIC OFFICIAL. NOT ACCEPTED. CASE AT HAND WHICH DESCRIBES CONDUCT OF REQUESTING (CORE VERB OF PASSIVE CORRUPTION), PRACTICED BY DEFENDANT ______ FOR THE PURPOSE OF OBTAINING UNDUE ADVANTAGE, CONSISTING OF THE MONTHLY PAYMENT OF R$ 295.00 (TWO HUNDRED NINETY-FIVE REAIS), IN CASH, FROM THE VICTIM, WHICH IN NO WAY IS CONFUSED WITH IMPOSITION BY REASON OF THE OFFICE OR FUNCTION EXERCISED BY HIM, THROUGH COERCION ARISING FROM THE “DEMAND,” ELEMENTS OF THE CRIME OF EXTORTION BY A PUBLIC OFFICIAL FOR WHICH THE DEFENSE SEEKS FRAMING. JUDGMENT IRREPROACHABLE ON THIS POINT.**
SUBSIDIARY REQUESTS. CONCURRENCE OF CRIMES. INVOKED RECOGNITION OF CONTINUED CRIME BETWEEN THE OFFENSES OF EXTORTION BY A PUBLIC OFFICIAL, TO THE DETRIMENT OF MATERIAL CONCURRENCE. IMPROCEDENCE. SAME NATURE, MODUS OPERANDI AND CONTEXT OF PLACE ALSO ARE IN THEIR GREAT MAJORITY SIMILAR. HOWEVER, HABITUAL CRIMINALITY. OFFENSES COMMITTED THROUGH MULTIPLE ACTIONS, WITH MULTIPLICITY OF DESIGNS, NOT BEING A HYPOTHESIS OF CONTINUED CRIME³⁰. DESIRED SUPPRESSION OF THE JUDICIAL ORDER THAT OFFICIATES TO THE BRAZILIAN BAR ASSOCIATION³¹, with a copy of the proceeding, so that a possible illicit provided for in the Bar Statute by the appellants may be investigated. NOT ACCEPTED. MERE COMMUNICATION OF FACTS THAT WILL BE EVALUATED BY THE PROFESSIONAL COUNCIL, WHICH DOES NOT CONFIGURE ANY SANCTION TO THE DEFENDANTS, SUFFICIENTLY REASONED. ACT THAT CANNOT BE CONSIDERED ILLEGAL OR ABUSIVE. PRECEDENT. MAINTENANCE THAT IMPOSES ITSELF.**
[...]
APPEAL FILED BY ________ PARTIALLY TAKEN COGNIZANCE OF AND DENIED. APPEAL FILED BY ______ TAKEN COGNIZANCE OF AND PARTIALLY GRANTED. APPEAL FILED BY THE PUBLIC PROSECUTION OFFICE TAKEN COGNIZANCE OF AND DENIED.
The motions for clarification³² filed were rejected in these terms (p. 2,762):
MOTION FOR CLARIFICATION IN CRIMINAL APPEAL. CRIMES COMMITTED BY A PUBLIC OFFICIAL AGAINST THE PUBLIC ADMINISTRATION IN GENERAL AND AGAINST THE ADMINISTRATION OF JUSTICE. ALLEGED DIRECT AND INDIRECT OMISSIONS IN THE JUDGMENT. DIRECT OMISSIONS NONEXISTENT. MATTERS RAISED IN THE MOTION DULY APPRECIATED. PRECEDENTS. MERE DISCONTENT WITH THE JUDGMENT. CLEAR EXPOSITION OF THE GROUNDS OF THE JUDGMENT. IMPOSSIBILITY OF REDISCUSSING THE MATTERS DEBATED. REQUIREMENTS OF ART. 619 OF THE CRIMINAL PROCEDURE CODE NOT EVIDENCED. INDIRECT OMISSIONS OF THESES BROUGHT IN MEMORIALS AND DURING ORAL ARGUMENT. MATTERS NOT ADDRESSED IN THE APPELLATE REASONS. NONEXISTENCE OF AN OBLIGATION TO RECOGNIZE, EX OFFICIO, THESES NOT DEBATED IN THE APPELLATE PLEADINGS, IN ALLUSION TO THE PRINCIPLE OF TANTUM DEVOLUTUM QUANTUM APPELLATUM³³. TEMPORAL PRECLUSION³⁴. CONCOMITANT ABSENCE OF DEFECTS TO BE REMEDIED. PREQUESTIONING³⁵ OF LEGAL AND CONSTITUTIONAL PROVISIONS. EXPRESS MANIFESTATION NOT MANDATORY. MOTIONS REJECTED.**
In the special appeal reasons, the defense points out, in addition to jurisprudential divergence, violation of arts. 157, 212, 213, 315, § 2, IV and VI, 386, III, 564, I, and 619 of the Criminal Procedure Code; 71 and 344 of the Criminal Code; and 354-A of the Electoral Code (pp. 2,786/2,787).
It initially alleges that the appealed judgment presents omissions, since the court a quo³⁶ failed to analyze arguments relevant to the case, such as the valuation of the evidence and continued criminal conduct³⁰ (pp. 2,789/2,790).
It argues, in summary, the absolute lack of jurisdiction by reason of subject matter, given the electoral nature of the facts, which should be judged by the Electoral Courts⁸, and not by the ordinary courts (pp. 2,792/2,799); the need for revaluation of the evidence, since there were illegalities in the conduct of the inquisitorial and judicial phases, such as the origin of the investigations, judicial activism, with biased action by the judge during the interrogation and the hearing of witnesses, with violation of the accusatorial criminal system¹¹ (pp. 2,799/2,826); non-characterization, by the testimonies of the alleged victims, of the occurrence of crimes of coercion in the course of the proceedings, since there was no serious threat, as provided in art. 344 of the Criminal Code (pp. 2,826/2,829); acquittal due to atypicality of facts 7 and 8 (pp. 2,829/2,830); need to recognize continued criminal conduct³⁰ between the crimes of extortion by a public official and passive corruption and between the crimes of coercion in the course of the proceedings, with removal of material concurrence³⁷ and adjustment of the imposed sentence (pp. 2,830/2,838); and the existence of jurisprudential divergence between the appealed judgment and the orientation of the Superior Court of Justice on continued criminal conduct (pp. 2,838/2,846).
Counter-arguments³⁸ having been presented (pp. 3,524/3,557), the appeal was admitted at origin³⁹ (pp. 3,641/3,642).
Called upon to manifest itself, the Federal Public Prosecution Office⁴⁰ opines for the non-cognizance of the special appeal and, subsidiarily, for its denial (pp. 3,716/3,736).
That is the report.
VOTE
The admissibility requirements having been satisfied, I proceed to the examination of the appellate allegations.
I analyze, first, the preliminary allegation of absolute lack of jurisdiction by reason of subject matter⁴¹.
It appears from the appealed judgment (pp. 2,675/2,679 – emphasis ours):
[...] 1.3.2. Still as a preliminary matter of merit, the appellant argues the absolute lack of jurisdiction of the State Court for the processing and judgment of the case, by reason of subject matter, in view of the electoral nature of the collections analyzed.
For that purpose, he explains that the facts dealt with in the indictment had, all of them, the installation of a party directory as the background to the alleged criminal practices.
He considers that the motivation for collecting those amounts from the declared victims was based on party contributions charged from occupants of commissioned positions exactly at a moment in which the reestablishment of the DEM party in the region of São Bento do Sul was underway.
He further argues that, because of this, in his understanding, there would be a need to remit the records to the Regional Electoral Court of Santa Catarina. Clearly, he is not right.
It is not unknown that in the jurisprudence of the Supreme Court, an orientation was established that, in the presence of indications of the practice of the crime provided in article 350 of the Electoral Code, jurisdiction for judgment would belong to the specialized courts, including in relation to common crimes:
[...]
Apart from that, the information contained in the records does not allow one to conclude, free from doubts, the existence of reasonable indications of the practice of an electoral crime.
The witnesses do not bring a coherent narrative regarding the electoral purpose of the demand for the undue amounts, at times discussing a generic contribution, at times alleging, without any evidentiary support, that these were amounts collected for the electoral campaign of appellant ______, or even party charges of one or another party. By way of example:
[...]
In this regard, the Superior Court of Justice has well established that “the declaration of jurisdiction of the Electoral Courts based only on statements of collaborating witnesses, witnesses and investigated or accused persons, without minimal documentary evidentiary support corroborating them, signals the relevant probability that the criminal actions, once annulled and sent to the Electoral Courts, will later return to the ordinary Federal Courts, with irreparable loss of the prior jurisdictional activity and significant risks to the legitimate punitive claim of the State by virtue of limitation periods” (AgRg in HC No. 724.799/PR, reporting Justice Minister Jesuíno Rissato (Appellate Judge Called from TJDFT), Fifth Panel, judged on 2/14/2023, DJe of 3/21/2023).
That is, it is absolutely unfeasible that, close to the end of the criminal instruction, some persons, with apparent political connection to the defendant, generically suggest that the alleged conduct practiced had some electoral purpose.
Moreover, the alleged party to which appellant ______ would belong was not even constituted in the aforementioned municipality.
The document drawn up by the board of the Democratas party — very conveniently — in mid-April 2019 (event No. 01, doc. 05, records No. 504910291.2022.8.24.0000), signaled a possibility of initiating negotiations for the reactivation of the party in the city of São Bento do Sul, for which it highlighted the need to organize a slate to assume the future Provisional Committee of Democratas in the Municipality.
Obviously these negotiations were not even initiated.
According to the records, the party account renderings of PSB and DEM (events No. 77, 79 and 80) deny the transfer both from the victims who contributed and from the appellants themselves who allegedly collected for this purpose, which in itself destroys any appearance of legality of the amounts collected.
The fact that the appellants named the amounts received as “party contributions,” by itself, is not sufficient to connect the amount unlawfully received with the purpose argued in court, that is, the restructuring of the Provisional Executive of the Municipal Directory of DEM in the municipality of São Bento do Sul.
Even because, although their positions were linked to political indications, notably to appellant ______, not all the victims were affiliated with any party. Some, in fact, demonstrated total dissatisfaction and disinterest in joining it, totally stripping away the intended appearance.
Thus, to say that the amounts could have been used for the alleged restructuring of a certain political party and, therefore, omitted or defrauded in the rendering of accounts — which would configure an electoral crime and attract the jurisdiction of the specialized courts — is a vague allegation which, unaccompanied by minimal indicia⁴², is not sufficient to give rise to the nullity of the present case.
On the subject, a precedent of the Federal Supreme Court must be cited, which demonstrates the infeasibility of indiscriminate remittance of cases to the Electoral Courts in cases where there is not even an indication of such conduct:
[...]
And this even becomes prudent, because, in the opposite direction, it would make the parties, aiming at possible delay or evasion of legal accountability, generically allege the existence of some electoral crime so that the proceedings would be stalled in the Ordinary Courts and remitted to another Court, which, by reflex path, would basically cause the Ordinary Courts to be cut off.
It would be enough for a person arrested for drug trafficking, for example, to allege that part of the profit was used for campaign financing, even without any indicia proof of this, for the proceedings to be remitted to another Court and remain in this exchange of jurisdiction during some interval.
In the cases analyzed, despite the clear attempt to distort the purpose of the transfers by the victims, with the intention of shifting the jurisdiction of the procedure to the specialized courts, it is evident that the amounts were destined for the personal benefit of the appellants, having nothing to do with electoral purposes.
Therefore, the exception of lack of jurisdiction pleaded must be rejected, taking into account the inexistence of any minimal indicia element⁴² of the practice of electoral crime as alleged, in view of the oral and documentary evidence in the records and the indictment itself attached, in the opposite direction. [...]
The jurisdiction of the Electoral Courts, arising from the interpretation given by the Supreme Court to the Federal Constitution and the legislation resulting therefrom, applies whenever in the criminal action there is any mention of a crime of that kind, whether in the description made by the prosecuting body regarding the alleged unlawful conduct, or in the decisions coming from the jurisdictional bodies (AgRg in REsp No. 1.854.892/PR, Reporting Justice for the judgment Minister Ribeiro Dantas, DJe 10/20/2021).
From the transcriptions above, it can be seen that there is no indication whatsoever of the practice of a crime of electoral nature in the context of the crimes imputed in the present criminal action. On the contrary, the judgment makes it clear that there is no minimal indicia element⁴² of the practice of electoral crime as alleged, in view of the oral and documentary evidence in the records and the indictment itself attached, in the opposite direction (p. 2,679).
Thus, since there was no imputation of an electoral crime or the occurrence of connection of the common offense with an electoral offense, the annulment of the criminal action and the forwarding of the case to the Electoral Courts are not justified. Precedents: STF - Rcl No. 42894 AgR, Minister Alexandre de Moraes, First Panel, DJe 2/7/2020; STJ - Rcl No. 42.842/PR, Minister Ribeiro Dantas, Third Section, DJe 5/3/2022 (HC No. 746.737/DF, Minister Joel Ilan Paciornik, Fifth Panel, DJe 9/12/2022).
See also: AgRg in HC No. 900.489/ES, reporting Justice Minister Joel Ilan Paciornik, Fifth Panel, judged on 7/1/2025, DJEN of 7/4/2025; AgRg in RHC No. 200.753/SP, reporting Justice Minister Messod Azulay Neto, Fifth Panel, judged on 2/12/2025, DJEN of 2/17/2025; AgRg in EDcl in AREsp No. 1.874.253/DF, reporting Justice Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 11/13/2024, DJe of 11/19/2024; AgRg in HC No. 829.160/SC, Minister Jesuíno Rissato (Appellate Judge Called from TJDFT), Sixth Panel, DJe 3/1/2024; AgRg in REsp No. 2.016.735/PR, under my reporting, Sixth Panel, DJe 6/16/2023; HC No. 731.649/RJ, under my reporting, Sixth Panel, DJe 5/19/2023; HC No. 747.750/MS, Minister Laurita Vaz, Sixth Panel, DJe 6/27/2022; and others.
With respect to arts. 212 and 213 of the Criminal Procedure Code, the appellant seeks a declaration of absolute nullity of the proceeding due to the suspicion of the Hon. Judge who conducted the proceeding at first instance, for violation of arts. 212, 213 and 544, I, of the CPP, pursuant to art. 564, I, of the CPP (p. 2,847). He argues the absolute nullity of the proceeding resulting from the judicial activism of the Judge during the interrogation and the hearing of witnesses, in offense against the accusatorial system¹¹.
In the judgment of the appeal, the local Court rejected the preliminary nullity matter, expressly recording (pp. 2,679/2,680 – emphasis ours):
[...] 1.3.3. Finally, the appellant also pleads the absolute nullity of the proceeding, in view of the partial posture adopted by the Hon. Judge who acted therein, which, in the view of the defense, besides representing an obstacle to full defense, resulted in disrespect to article 5, item LV, of the Federal Constitution.
The raised preliminary matter does not deserve to be accepted.
The impartiality of the judge arises from the principle of the natural judge⁴³, this being understood by doctrine as a guarantee conferred on citizens against the arbitrariness of judges. It is one of the greatest guarantees of the realization of justice and, although not express in the Federal Constitution, it is a constitutional guarantee.
[...]
In the concrete case, however, there is no violation of the constitutional guarantee, since Her Excellency’s action is not a reason for impartiality.
Indeed, articles 145 of the Code of Civil Procedure and 254 of the Code of Criminal Procedure provide the hypotheses in which the judge does not hold impartiality to act in a given proceeding and no item fits the action of the single judge.
On the matter, such thesis was already the object of an exception of suspicion⁴⁴, docketed under records No. 5006504-45.2022.8.24.0058, three years after the occurrence of the instruction and judgment hearing in which the alleged inquisitorial action and judicial activism occurred. On that occasion, this Collegiate recognized the preclusion of the allegation of defect in impartiality also formulated by the now appellant, not taking cognizance of the exception filed.
It is worth highlighting the syllabus of the judgment:
“EXCEPTION OF SUSPICION. ALLEGATION OF BREAK OF THE IMPARTIALITY OF THE SINGLE JUDGE IN THE QUESTIONING OF WITNESSES AND INTERROGATION OF THE DEFENDANT. NOT TAKEN COGNIZANCE OF. UNTIMELY RAISING. NOT ALLEGED AT THE FIRST OPPORTUNITY TO MANIFEST. EXCEPTION FILED THREE YEARS AFTER THE INSTRUCTION AND JUDGMENT HEARING. TEMPORAL PRECLUSION³⁴. PRECEDENTS.
‘Suspicion must be raised at the first opportunity in which one has to speak in the records, under penalty of preclusion’ (HC No. 451.528/SC, reporting Justice Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 8/7/2018, DJe of 8/15/2018).
NOT TAKEN COGNIZANCE OF.”
In any case, the judge’s action respected the limits established by the legal order and by its legal interpretation given to the case.
Contrary to what the Defense debates, there was no violation of the accusatorial system or of the duty of impartiality of the judge, since the questions to the appellant were carried out in accordance with the determination of article 188⁴⁵ of the Criminal Procedure Code, which enables the conduct of said act by the judge.
It is also perceived that the inversion that occurred did not culminate in any prejudice to the interests of the appellant, which is indispensable for the decree of any nullity, under the terms of the respective article 563: “No act shall be declared null if the nullity does not result in prejudice to the prosecution or to the defense,” embodying the brocard pas de nullité sans grief⁴⁶. On the matter, this Court of Justice has already decided:
[...]
It is not too much to remember that the single decision will be the object of review by this Collegiate⁴⁷ and any incorrectness will be adjusted with the granting of the appellate challenge, but, even if there is reform of the judgment, this does not imply partiality of the judge.
Furthermore, it is recorded, as very well clarified by the Illustrious Prosecutor of Justice, that “any defect of the police inquiry⁴⁸, by reason of the ‘informal collaboration’ of councilman Daguimar Nogueira, does not affect the decision, for this element was not used for the formation of the conviction of the judge. It is necessary to emphasize that the challenged judicial decision is supported by other evidentiary elements collected throughout the criminal instruction. There is also no nullity by reason of the alleged defect in the testimony in the police stage of the offended party Márcio Prado do Lima, since he was heard in court and the informational elements were confirmed before the judicial authority.” (p. 06, event No. 23).
Thus, there is no nullity to be decreed in the species. [...]
In the judgment of the motions for clarification, the Collegiate⁴⁷ recorded (p. 2,759):
the vote rendered by this Collegiate objectively recorded that, in the concrete case, there was no violation of the constitutional guarantee, “since Her Excellency’s action was not a reason for impartiality.” But that was not all. It also recorded that “the action of the judge respected the limits established by the legal order and by its legal interpretation given to the case.” And further, that, “Contrary to what the Defense debates, there was no violation of the accusatorial system or of the duty of impartiality of the judge, since the questions to the appellant were carried out in accordance with the determination of article 188⁴⁵ of the Criminal Procedure Code, which enables the conduct of said act by the judge,” in clear mention to the provisions that it said were omitted. Therefore, it is emphasized, once again, that the understanding of this Court of Justice is that there is no need for express manifestation regarding all legal provisions invoked by the party or even regarding all allegations raised by it, especially when the judgment now challenged duly analyzed the defensive theses and the arguments capable of undermining the conclusion reached, the reasoning adopted being sufficient.
However, the grievance deserves to be accepted.
It is gathered from the records that, in the criminal instruction, several prosecution witnesses were heard, as well as the defendants were interrogated (pp. 638/642). According to the defense, the Judge directly examined the following witnesses (pp. 2.422/2.431): _____________ (item 73); _____________ (item 76); _____________ (item 78); _____________ (item 81); _____________ (item 88); _____________ (item 90); and _____________ (item 102).
The consolidation of the accusatorial system¹¹ in Brazil, reinforced by the reform introduced by Law No. 11.690/2008, imposed clear limits on the posture of the judge in the production of oral evidence.
Article 212 of the Code of Criminal Procedure came to provide for the so-called model of direct examination¹² (cross-examination), in which questions are formulated primarily by the parties. The action of the judge, in this system, is of a complementary nature, intended to remedy points not clarified, and not to replace the procedural subjects. That is, the judge may ask questions, but only to complement or clarify points that remained obscure after the examination by the parties. The objective of the rule is clear: to strengthen the principle of adversarial proceedings and equality of arms, safeguarding the impartiality of the judge.
In this sense: AgRg in EDcl in HC No. 806.955/RS, reporting Justice Minister Rogerio Schietti Cruz, Sixth Panel, judged on 6/13/2023, DJe of 6/23/2023; REsp No. 1.846.407/RS, under my reporting, Sixth Panel, judged on 12/13/2022, DJe of 12/27/2022; and AgRg in HC No. 721.949/SP, reporting Justice Minister Rogerio Schietti Cruz, Sixth Panel, judged on 3/8/2022, DJe of 3/16/2022.
Indeed, the Superior Court of Justice understands that the accusatorial structure of the national criminal proceeding prevents the functions of defending, accusing and judging from overlapping in one and the same procedural subject. Although the evidentiary initiative of the judge is not eliminated, it must occur in a residual, complementary way and always with care to preserve his impartiality. See AgRg in HC No. 968.735/RO, reporting Justice Minister Carlos Cini Marchionatti (Appellate Judge Called from TJRS), Fifth Panel, judged on 5/20/2025, DJEN of 5/26/2025.
In the concrete case, it is gathered from the records that, at the instruction hearing⁴⁹, although there was no inversion of the order of examination of witnesses provided in article 212 of the Code of Criminal Procedure, the judge’s action, in some testimonies, was not merely residual and complementary to the parties. The first-degree judge assumed an active role in the production of evidence, many times inducing the answers, acting as protagonist in the examination of some witnesses, among them, _____________, _____________, _____________, _____________, among others.
The same pattern was repeated in the interrogation of the defendant. Although article 188⁴⁵ of the Code of Criminal Procedure allows the judge to initiate the act, the posture adopted by the judge went beyond the function of clarification and entered the accusatory field. Her excessively active action distorted the interrogation from its primary function as a means of defense into an inquisitorial search for evidence against the defendant, resulting in proven violation of impartiality. The evidentiary initiative of the Judge was not limited to clarification of issues or doubtful points about the evidence. It went beyond clarification and revealed itself investigative and accusatory, replacing the procedural burden of the Public Prosecution Office and violating procedural isonomy⁵⁰.
Contrary to what was stated by the court of origin, the prejudice to the defense is evident. The evidence that supported the condemning decree⁵¹ was gathered in a procedural act in which the protagonism of the Judge prevailed, who acted in substitution for the evidentiary production that belonged to the parties. Such conduct generates an imbalance in the equal structure of the proceeding and violates, ultimately, its accusatorial format. According to the jurisprudence of this Court, in similar cases, the prejudice is manifest, because the conviction is based on evidence not produced under the scrutiny of a balanced adversarial proceeding.
The issue is not reduced to a mere inversion in the order of questions, but rather to a fundamental break in the structure of due process of law. When the judge assumes the functions of the prosecuting body, impartiality, which is the main beam of jurisdiction⁵², becomes irremediably compromised.
Therefore, the action of the Judge affected the fundamental rights of the appellant, compromising the duty of impartiality both in the production of witness evidence and in the interrogation.
In similar cases, this Court has already decided:
CRIMINAL LAW AND CRIMINAL PROCEDURE. INTERLOCUTORY APPEAL⁵³ IN THE SPECIAL APPEAL. DRUG TRAFFICKING. INSTRUCTION AND JUDGMENT HEARING. ABSENCE OF THE REPRESENTATIVE OF THE PUBLIC PROSECUTION OFFICE. NULLITY. OCCURRENCE. PRECLUSION. ABSENCE. INTERLOCUTORY APPEAL DENIED.**
1. “The absence of the Public Prosecution Office at the judicial act, with the consequent production of evidence by the Judge, generates an imbalance in the equal structure of the proceeding and violates, ultimately, its accusatorial format” (AgRg in HC No. 839.191/RS, reporting Justice Minister Sebastião Reis Júnior, Sixth Panel, judged on 12/11/2023, DJe of 12/14/2023).
2. As stated in the appealed decision, the defense objected to the aforementioned defect, in time and manner (e-STJ p. 585), which consequently removed the incidence of preclusion in the present hypothesis, since it is a relative nullity. Indeed, “the case under analysis reveals peculiar contours, because, according to the documents now attached to the records, the entire procedural instruction was conducted by the Trial Judge, who heard the victim, examined the prosecution witnesses and those listed by the defense, and it is necessary to conclude that the Trial Judge acted in the place of the Prosecutor of Justice and, more than allowing the persons heard to recount what occurred, formulated questions, beyond that which can be admitted by way of clarification or supplementation” (AgRg in EDcl in HC No. 806.955/RS, reporting Justice Minister Rogerio Schietti Cruz, Sixth Panel, judged on 6/13/2023, DJe of 6/23/2023).
3. Interlocutory appeal denied.
(AgRg in AREsp⁵⁴ No. 2.486.310/RS, Minister Antonio Saldanha Palheiro, Sixth Panel, judged on 4/2/2024, DJe of 4/10/2024).
CRIMINAL LAW AND CRIMINAL PROCEDURE. INTERLOCUTORY APPEAL IN HABEAS CORPUS⁵⁵. FIRE (ART. 250, § 1, II, C/C ART. 14, II, BOTH OF THE CRIMINAL CODE). INSTRUCTION AND JUDGMENT HEARING HELD WITHOUT THE PRESENCE OF THE REPRESENTATIVE OF THE PUBLIC PROSECUTION OFFICE. NULLITY. ABSENCE OF DIFFERENTIATION BETWEEN THE JUDGE AND THE PROSECUTING BODY. FAVORABLE PROSECUTORIAL OPINION.**
1. The absence of the Public Prosecution Office at the judicial act, with the consequent production of evidence by the Judge, generates an imbalance in the equal structure of the proceeding and violates, ultimately, its accusatorial format.
2. Interlocutory appeal denied.
(AgRg in HC⁵⁶ No. 839.191/RS, under my reporting, Sixth Panel, DJe of 12/14/2023).
INTERLOCUTORY APPEAL IN THE SPECIAL APPEAL. CONSUMMATED AND ATTEMPTED FRAUD. FALSE IDENTITY. ABSENCE OF THE REPRESENTATIVE OF THE PUBLIC PROSECUTION OFFICE AT THE INSTRUCTION HEARING. HEARING OF WITNESSES BY THE JUDGE. ACTION IN SUBSTITUTION OF THE PARTIES. VIOLATION OF ART. 212 OF THE CPP. CONCRETE PREJUDICE DEMONSTRATED. NULLITY DECLARED. INTERLOCUTORY APPEAL NOT GRANTED.
1. The current understanding of the STJ is that the action of the judge in evidentiary production is of a complementary nature and not of substitution to the procedural subjects. Precedents.
2. In the hypothesis, the Judge, having recorded the absence of the representative of the Public Prosecution Office, proceeded with the hearing and promoted the hearing of witnesses and victims, in substitution to the office of the Parquet⁵⁷, which is contrary to the predominant jurisprudential orientation of this Superior Court.
3. The defense objected to the judicial action at the hearing itself and the evidence produced supported the condemning decree⁵¹, circumstances which justify the declaration of nullity of the act practiced.
4. The precedents of the Federal Supreme Court, brought by the Parquet⁵⁷ in the reasons for this interlocutory appeal, do not refer to the hypothesis of absence of the representative of the Public Prosecution Office at the instruction hearing, which characterizes the lack of factual similarity between the judgments.
5. Interlocutory appeal not granted.
(AgRg in AREsp⁵⁴ No. 2.348.111/RS, Minister Rogerio Schietti Cruz, Sixth Panel, judged on 9/5/2023, DJe of 9/13/2023).
Having made these considerations, the grievance must be accepted in order to declare the nullity of the judicial acts practiced from the instruction hearing onward.
Consequently, the records must return to the processing court⁵⁸ so that it may remove from the record¹⁴ the evidence collected in said hearing and all the pieces that refer to them, renewing the act with strict observance of the rule of article 212 of the Code of Criminal Procedure. In view of the cognizance and acceptance of the special appeal on this point, the other requests formulated in the special appeal are prejudiced.
For the foregoing reasons, I partially grant the special appeal, in order to recognize the nullity of Proceeding No. 0002149-82.2019.8.24.0058/SC, of the 3rd Court of the district⁵⁹ of São Bento do Sul/SC, from the instruction hearing onward, with the necessary renewal of the act, in the terms of this judgment.
---
Superior Court of Justice – S.T.J.
Pg. _________
CERTIFICATE OF JUDGMENT⁶⁰
SIXTH PANEL¹⁶
Registration Number: 2025/0182853-2
ELECTRONIC PROCEEDING
REsp 2.214.638 / SC
CRIMINAL MATTER
Origin Numbers: 00021498220198240058 21498220198240058
DOCKET: 10/01/2025
JUDGED: 11/04/2025
Reporting Justice²
Hon. Minister SEBASTIÃO REIS JÚNIOR
Presiding Justice of the Session
Hon. Minister CARLOS PIRES BRANDÃO
Deputy Attorney General of the Republic⁶¹
Hon. Dr. CARLOS FREDERICO SANTOS
Secretary
Clerk ELISEU AUGUSTO NUNES DE SANTANA
DOCKETING
APPELLANT : __________________
ATTORNEYS : EDUARDO LUIZ COLLAÇO PAULO - SC019496
PAULO BENJAMIN FRAGOSO GALLOTTI - SC029050
ATTORNEYS : FERNANDA MACHADO DO VALLE PEREIRA - RS111228
RODRIGO TOLENTINO DE CARVALHO COLLAÇO - SC004967
ATTORNEYS : MANUELA MOSER - SC061894
CARLOS ANDRE CARLINI - SC061190
RICARDO TEIXEIRA DO VALLE PEREIRA - SC073976
APPELLEE : PUBLIC PROSECUTION OFFICE³ OF THE STATE OF SANTA CATARINA
CO-DEFENDANT : __________________
SUBJECT: CRIMINAL LAW - Crimes Committed by Public Officials Against the Public Administration in General - Extortion by a Public Official⁵
ORAL ARGUMENT
Dr. RODRIGO TOLENTINO DE CARVALHO COLLAÇO, for the APPELLANT party: __________________
CERTIFICATE
I certify that the illustrious SIXTH PANEL¹⁶, upon examining the proceeding indicated above in the session held on this date, rendered the following decision:
The Sixth Panel, unanimously, partially granted the special appeal, in the terms of the vote of the Honorable Reporting Justice.
Justices Rogerio Schietti Cruz, Antonio Saldanha Palheiro, Carlos Pires Brandão and Og Fernandes voted with the Honorable Reporting Justice.
C542605515443470911083@ 2025/0182853-2 - REsp 2214638
Electronic document VDA52039584 electronically signed pursuant to Art. 1, §2, item III of Law 11.419/2006
Signatory: ELISEU AUGUSTO NUNES DE SANTANA, SIXTH PANEL Signed on: 11/04/2025 21:34:09
Document Control Code: E241E8CC-3057-49E8-8FD8-C1B453B688F0
Footnotes -
1. Special Appeal (Recurso Especial): An appeal to the Superior Court of Justice of Brazil (STJ), generally limited to federal statutory law issues and not intended for broad reexamination of facts and evidence.
2. Reporting Justice (Relator): The Justice assigned to report on the case and present the leading vote to the panel.
3. Public Prosecution Office (Ministério Público): Brazil’s constitutionally autonomous prosecutorial institution, responsible for criminal prosecution and defense of legal order and collective interests.
4. Syllabus (Ementa): The official summary of the judgment, usually stating the main legal issues and the holding.
5. Extortion by a Public Official (Concussão): A specific crime under Brazilian law in which a public official unlawfully demands an undue advantage by reason of the office held. It is not identical to the ordinary English-language concept of “extortion.”
6. Passive Corruption (Corrupção Passiva): A crime committed by a public official who requests, receives, or accepts a promise of an undue advantage by reason of office.
7. Coercion in the Course of the Proceedings (Coação no Curso do Processo): A Brazilian criminal offense involving the use of violence or serious threat to favor one’s own or another’s interest in judicial, police, or administrative proceedings.
8. Electoral Courts / Electoral Justice (Justiça Eleitoral): Brazil’s specialized judicial branch with jurisdiction over electoral matters and electoral crimes.
9. Nullity (Nulidade): In Brazilian procedure, invalidity of a procedural act or proceeding due to a legal defect affecting due process or other procedural guarantees.
10. Criminal Procedure Code (CPP): Abbreviation for Código de Processo Penal, Brazil’s Code of Criminal Procedure.
11. Accusatorial System (Sistema Acusatório): A procedural model in which the functions of accusing, defending, and judging must remain institutionally distinct, so that the judge does not act as prosecutor or investigator.
12. Examination of Witnesses / Direct Examination Model under Article 212: Article 212 of the Brazilian Criminal Procedure Code gives priority to questioning by the parties, with the judge acting only in a supplementary or clarifying role.
13. Interrogation of the Defendant (Interrogatório do Réu): In Brazilian criminal procedure, the defendant’s questioning is also considered a means of defense, not merely a source of incriminating evidence.
14. Removal from the Record (Desentranhamento): Formal removal of documents or evidence from the case file, generally because they were improperly produced or admitted.
15. Renewal of the Hearing (Renovação da Audiência): Reholding the hearing so that the procedural act may be repeated in compliance with legal requirements.
16. Sixth Panel (Sexta Turma): One of the STJ’s collegiate panels, typically composed of five Justices.
17. DJEN/CNJ: The National Electronic Justice Gazette maintained under the authority of the National Council of Justice (Conselho Nacional de Justiça), used for official judicial publication.
18. By Prevention (Por Prevenção): Allocation of the case to a judge or justice because of prior connection with a related case, under Brazilian procedural rules.
19. RHC: Abbreviation for Recurso em Habeas Corpus, a form of appeal related to habeas corpus matters in Brazilian procedure.
20. Constitutional Permissive Provision (Permissivo Constitucional): Reference to the constitutional clauses that authorize the filing of a special appeal, typically article 105, III, letters “a” and “c” of the Federal Constitution.
21. Criminal Appeal (Apelação Criminal): Ordinary appeal against a criminal judgment rendered by a trial court.
22. Appellate Innovation (Inovação Recursal): Improper raising, on appeal, of arguments or requests not previously presented at the proper procedural stage.
23. Suppression of Instance (Supressão de Instância): Procedural impropriety that occurs when a higher court is asked to decide an issue not previously examined by the lower court.
24. Not Taken Cognizance Of (Não Conhecido): A ruling that the court will not examine a claim or part of an appeal because of a procedural defect, lack of admissibility, or improper presentation.
25. Denial of Defense (Cerceamento de Defesa): Improper restriction of the right of defense, including the right to present arguments and evidence.
26. Single Judge / Trial Judge (Togada Singular): Expression referring to the individual lower-court judge, as opposed to a collegiate panel.
27. Merits (Mérito): The substantive issues of the case, as distinct from preliminary procedural objections.
28. Authorship and Materiality (Autoria e Materialidade): Standard Brazilian criminal-law formula referring to proof that the crime occurred and proof of who committed it.
29. Commissioned Positions / Appointed Public Positions (Cargos em Comissão): Public positions of trust or appointment, generally not filled through permanent civil-service examination.
30. Continued Crime / Continued Criminal Conduct (Continuidade Delitiva / Crime Continuado): A doctrine allowing multiple similar offenses committed under certain conditions to be treated, for sentencing purposes, as continuation of one another rather than fully separate crimes.
31. Brazilian Bar Association (Ordem dos Advogados do Brasil – OAB): Brazil’s mandatory bar institution, responsible for licensing attorneys and disciplinary oversight.
32. Motions for Clarification (Embargos de Declaração): A procedural motion used to request clarification, correction of omission, contradiction, ambiguity, or material error in a judgment.
33. Tantum devolutum quantum appellatum: Latin expression meaning that the appellate court examines only what was effectively challenged in the appeal.
34. Temporal Preclusion (Preclusão Temporal): Loss of the procedural right to raise a matter because the proper time to do so has passed.
35. Prequestioning (Prequestionamento): Brazilian appellate requirement, especially for superior-court review, that the legal issue must have been addressed in the lower-court decision.
36. Court a quo: Traditional appellate expression referring to the lower court whose decision is being challenged.
37. Material Concurrence of Crimes (Concurso Material): Situation in which multiple crimes are punished cumulatively because they are treated as distinct acts.
38. Counter-arguments (Contrarrazões): The appellee’s written response to the appeal.
39. Admitted at Origin (Admitido na Origem): The lower court found the appeal formally admissible and forwarded it to the superior court.
40. Federal Public Prosecution Office (Ministério Público Federal): The federal branch of the Public Prosecution Office, which may issue opinions before the superior courts even when the original prosecution was state-level.
41. Absolute Lack of Jurisdiction by Reason of Subject Matter (Incompetência Absoluta em Razão da Matéria): Non-waivable lack of subject-matter jurisdiction; if established, acts may be void.
42. Minimal Indicia / Minimal Indicia Element (Elemento Indiciário Mínimo): Minimal evidentiary support suggesting that a certain offense may have occurred.
43. Natural Judge (Juiz Natural): Constitutional guarantee that a person will be judged by the competent, previously established judicial authority, not by an ad hoc tribunal.
44. Exception of Suspicion (Exceção de Suspeição): Procedural mechanism used to challenge a judge’s impartiality based on legal grounds of bias or suspicion.
45. Article 188 of the Criminal Procedure Code: Provision governing judicial questioning of the defendant, often cited to define the proper limits of the judge’s role during interrogation.
46. Pas de nullité sans grief: Traditional maxim meaning that no procedural nullity is recognized without a showing of prejudice.
47. Collegiate / Panel (Colegiado / Turma): A multi-member judicial body that decides cases collectively.
48. Police Inquiry (Inquérito): Pretrial investigative phase conducted under Brazilian law, usually by the police, prior to the criminal action.
49. Instruction Hearing (Audiência de Instrução): Evidentiary hearing in which witness testimony and other oral evidence are produced.
50. Isonomy / Procedural Equality (Isonomia Processual): Equality between the parties in the litigation process.
51. Condemning Decree (Édito Condenatório): Formal expression referring to the conviction judgment
52. Main Beam of Jurisdiction (Viga Mestra da Jurisdição): Metaphorical expression used to describe impartiality as a foundational requirement of adjudication.
53. Interlocutory Appeal / Regimental Appeal (Agravo Regimental / AgRg): Internal appeal against a single-justice decision within the same court.
54. AREsp: Abbreviation for Agravo em Recurso Especial, an appeal concerning the denial of a special appeal.
55. Interlocutory Appeal in Habeas Corpus: Internal appeal within the habeas corpus proceeding against a monocratic decision.
56. HC: Abbreviation for Habeas Corpus, a constitutional remedy used to protect freedom of movement against unlawful constraint.
57. Parquet: Traditional legal term used in Brazil to refer to the Public Prosecution Office.
58. Processing Court (Juízo Processante): The trial court responsible for continuing the proceeding after the superior court’s decision.
59. District / Judicial District (Comarca): Territorial judicial division in Brazil.
60. Certificate of Judgment (Certidão de Julgamento): Official clerk’s record certifying the date, composition, and result of the judgment.
61. Deputy Attorney General of the Republic (Subprocurador-Geral da República): Senior federal prosecutor who may act before the superior courts.
