Suspicion

Suspicion is a procedural legal institute designed to ensure the subjective impartiality of a magistrate or other public agents acting in a legal proceeding, operating as a fundamental guarantee of due process of law. Applicable primarily within the realms of Civil Procedural Law and Criminal Procedural Law, its primary purpose is the removal of the judge when there are indications of bias arising from ties of affection, enmity, or interest in the outcome of the case, thereby preserving the integrity of the jurisdictional service.

1. Definition, Concept, and Legal Nature

Suspicion is a state of legitimate distrust regarding a judge's impartiality, based on subjective circumstances that link them to one of the parties or to the object of the litigation. It differs from impediment, which is based on objective criteria and absolute presumption (iuris et de jure), as it resides in the field of subjectivity, sometimes requiring proof of the bond that compromises the judge's neutrality.

The legal nature of suspicion is that of a procedural exception or, under the system of the 2015 Code of Civil Procedure, a relative subjective procedural prerequisite regarding the judge. It is a condition for the effectiveness of the exercise of jurisdiction. The absence of impartiality corrupts the process at its origin, given that the figure of the "impartial judge" is not merely an ethical duty, but a constitutive element of the very concept of jurisdiction.

2. Historical Origin and Evolution in Law

Historically, the institute dates back to Roman Law, specifically the recusatio judicis, which allowed parties to remove judges suspected of bias. In the medieval period, Canon Law deepened these grounds for recusal to avoid injustices arising from ties of consanguinity or capital enmities.

In the Brazilian legal system, the evolution is marked by the transition from rigid systems to more principle-based models. The Codes of Civil Procedure of 1939 and 1973 already provided for suspicion, but it was with the 1988 Federal Constitution that the principle of the Natural Judge (Art. 5, LIII) elevated impartiality to the status of a fundamental guarantee. The 2015 CPC (Law No. 13,105) consolidated the procedure, while the 1941 Code of Criminal Procedure maintains a specific list, even if interpreted in light of modern conventional guarantees, such as the Pact of San José, Costa Rica.

3. Exact Legal Provision

The legal basis for suspicion is distributed across the main procedural statutes and the Fundamental Law:

• Federal Constitution: Art. 5, clauses XXXVII (prohibition of extraordinary courts or tribunals) and LIII (principle of the natural judge).
• Code of Civil Procedure (CPC), Art. 145: Establishes that a judge is suspected when:
  1. They are an intimate friend or enemy of any of the parties or their lawyers;
  2. They receive gifts from people interested in the case before or after the process has begun, advise any of the parties regarding the object of the case, or provide means to meet the litigation expenses;
  3. When any of the parties is a creditor or debtor of the judge, their spouse or partner, or their relatives in a straight line up to the third degree, inclusive;
  4. They are interested in the judgment of the case in favor of any of the parties.
• Code of Criminal Procedure (CPP), Art. 254: Presents an analogous list, applying if the judge is an intimate friend or capital enemy of any of them; if they, their spouse, ascendant, or descendant are responding to a process for an analogous fact, regarding whose criminal nature there is controversy; if they, their spouse, or relative, by blood or marriage, up to the third degree, inclusive, sustain a lawsuit or respond to a process that must be judged by any of the parties, among others.

4. Practical Application and Consolidated Jurisprudence

The practical application of the institute requires the argument to be made through a specific petition, addressed to the judge of the case, within the legal deadline (15 days in the CPC, pursuant to Art. 146). If the magistrate does not recognize the suspicion, the process is filed separately and sent to the Court.

Understanding of the STF and STJ: Contemporary jurisprudence has debated the exhaustive nature of the list in Art. 145 of the CPC and Art. 254 of the CPP. The Superior Court of Justice (STJ) traditionally maintains that the list is exhaustive (numerus clausus). However, recent decisions have made this understanding more flexible to cover situations that, although not literally described in the law, unequivocally demonstrate the compromise of impartiality, in compliance with the principle of due process of law.

In the Supreme Federal Court (STF), the judgment of Habeas Corpus 164.493 became a landmark by analyzing suspicion under the lens of the "appearance theory" and the set of procedural acts that, combined, reveal the loss of subjective neutrality. The STF consolidated that impartiality is a conventional guarantee (Art. 8.1 of the American Convention on Human Rights), and that the breach of the duty of distance between the prosecution and the judge generates the absolute nullity of the acts performed.

5. Related Principles and Doctrinal Divergences

The institute of suspicion orbits around fundamental principles:

• Principle of the Natural Judge: Ensures that no one will be judged by an organ constituted after the fact or by a judge chosen arbitrarily.
• Principle of Impartiality: It is the pillar that supports social trust in the Judiciary.
• Duty of Urbanity and Magistracy Ethics: Provided for in the LOMAN (Organic Law of the National Magistracy).

Doctrinal Divergence: There is a relevant cleavage regarding the "self-declaration of suspicion for reasons of intimate forum." Art. 145, § 1 of the CPC allows the judge to declare themselves suspicious without explaining the reasons. Part of the doctrine criticizes this prerogative, arguing that it may violate the principle of the inalienability of jurisdiction and the natural judge if used as a mechanism to avoid complex cases. Another current argues that preserving the magistrate's privacy is necessary to avoid unnecessary exposure of their private life.

6. Contemporary Relevance and Practical Impacts

In the current legal scenario, suspicion has assumed a central role in controlling the integrity of the justice system. The impact of the declaration of suspicion is severe: the nullity of decision-making acts and, depending on the degree of contamination, the nullity of investigative acts. In criminal proceedings, the recognition of a magistrate's suspicion implies, as a rule, the retroactive annulment of the process from the moment the vice manifested.

Digitization and exposure on social networks have brought new challenges. Public statements by magistrates on sub judice topics have frequently been the subject of exceptions of suspicion, forcing courts to delineate the boundary between the citizen-judge's freedom of expression and the magistrate's duty of reserve and impartiality.

Legal and Jurisprudential References

• BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF.
• BRAZIL. Law No. 13,105, of March 16, 2015. Code of Civil Procedure.
• BRAZIL. Decree-Law No. 3,689, of October 3, 1941. Code of Criminal Procedure.
• STF. Habeas Corpus No. 164.493/PR. Rapporteur: Justice Edson Fachin. Editor for the judgment: Justice Gilmar Mendes. Judged on 03/23/2021.
• STJ. Internal Interlocutory Appeal in Special Appeal No. 1.831.325/SP. Rapporteur: Justice Marco Aurélio Bellizze. Third Panel. Judged on 08/24/2020.
• National Council of Justice. Code of Ethics of the National Magistracy.