On March 8th, 2021, when considering the Motions for Clarification in the Writ of Habeas Corpus (HC) No. 193,726, the honorable Supreme Court Justice Edson Fachin, in a paradigmatic decision, granted the constitutional remedy in favor of President Luiz Inácio Lula da Silva (who at the time did not occupy this position) to "declare the lack of jurisdiction of the 13th Federal Court of the Judicial Subsection of the city of Curitiba for the prosecution and trial of Criminal Actions no. 5046512-94. 2016.4.04.7000/PR (Triplex apartment in Guarujá), no. 5021365-32,2017,4,04,7000/PR (Estate in Atibaia), no. 5063130-17, 2018,4,04,7000/PR (Head Offices of Instituto Lula) and no. 5044305-83,2020,4,04,7000/PR (donations to Instituto Lula), determining the referral of the respective case records to the Judiciary Section of the Federal District" and further declaring, " the nullity only of the decision-making acts performed in the respective criminal actions, including the receipt of the criminal complaint, as a corollary and by force of the provisions of article 567 of the Brazilian Code of Criminal Procedure, and that the competent court should decide on the possibility of revalidation of the instructional acts". [1]

As noted, when examining the case, under the terms of article 567 of the Code of Criminal Procedure, the illustrious rapporteur judge declared null and void the decision making acts performed in the court that was declared to have no jurisdiction, including the acts of receipt of the criminal complaints, leaving it up to the competent court to decide on the revalidation or not of the instructional acts.

This monocratic ruling by Justice Fachin was later ratified by the Supreme Court´s Plenary, when judging the Special Appeal in the same Writ of Habeas Corpus No. 193,726, on which occasion the Court also explicitly honored the observance of the principle of Natural Judge, provided for in article 5, items XXXVII and LIII, of the Federal Constitution. [2]

Therefore, if through the Plenary, the Supreme Court decided that relative (territorial) lack of jurisdiction is a cause for absolute nullity, it is more reason to conclude that absolute lack of jurisdiction is a cause of incontrovertible nullity, also of an absolute nature, under the terms of art. 567 of the Code of Criminal Procedure.

In fact, it is possible to state that the Supreme Court equated the relative lack of jurisdiction in the case of President Lula to an absolute lack of jurisdiction, perhaps because of the seriousness of the defect observed. Moreover, this should lead to the basic understanding that, with the establishment of this jurisprudence, all absolute lack of jurisdiction is a cause of irreparable nullity.

Similarly, in the judgment of RCL (complaint) 43479, regarding the scope of the declaration of nullity, the honorable Justice Gilmar Mendes emphasized the need for a new complaint to be filed before the competent court, explicitly declaring the nullity of the complaint and its exclusion from the process in a Motion for Clarification. [3]

Similarly, in a later case, whose rapporteur for entry of judgment was Justice Ricardo Lewandowski, the 2nd Panel of the STF also recognized, in a majority decision, the nullity of the decision-making acts from the time of the accusation, due to the court´s lack of jurisdiction. [4]

It is evident that, as in the "Lula case", once any person is convicted by a court with an absolute lack of jurisdiction, the principle of the natural judge will be violated, and the damage will be irreversible and concretely presumed, offending not only the due legal process, but also the rights of defense (Federal Constitution, art. 5, LIV and LV).

In the precedent judged by laborious Justice Edson Fachin (HC 193, 726 ED) in the "Lula case", eminent Justice Rosa Weber pointed out that the "theory of apparent jurisdiction" would not apply to ratify the receipt of the complaint, because the "application of the theory, as a tool for preserving acts performed by an incompetent (lack of jurisdiction) court, requires the supervening of factual or evidentiary elements or ignorance of their existence  at the time of the performance of the procedural acts [...], which does not occur in this case".

However, it should be noted that if the "theory of apparent jurisdiction" did not apply in that hypothesis, it certainly does not apply to any hypothesis of absolute jurisdiction, especially when the lack of jurisdiction is timely argued through appropriate procedural means, including the writ of habeas corpus. Nor would the "theory of apparent jurisdiction" apply to save an absolutely incompetent jurisdiction, when the defendant is convicted, suffering concrete damages, by a court with an absolute lack of jurisdiction.

Note that in the "Lula case", the "theory of apparent jurisdiction" was set aside because the lack of jurisdiction (incompetence) was considered, in practice, to be of an absolute nature, violating the principle of the natural judge.

In fact, strictly speaking, the defendant, Luiz Inácio Lula da Silva, was convicted by several courts, as if the 13th Federal Court of Curitiba had jurisdiction, and he was even kept in prison by the Supreme Court itself, on the presumption that the 13th Federal Court of Curitiba was the competent jurisdiction to judge the matter. This circumstance, in itself, demonstrates that the Supreme Court´s plenary ruling, in the precedent of HC 193,476 AgR, extinguished the "theory of apparent jurisdiction" in matters of absolute nullity, derived, at least, from absolute lack of jurisdiction (incompetence).

Nevertheless, following the judgment by the Supreme Court´s Plenary, there have been overriding decisions by STF Justices to mitigate nullities arising from absolute incompetence (lack of jurisdiction), tolerating the ratification of the acceptance of the claim.

In fact, in a recent decision, after the "Lula case", the eminent Justice Roberto Barroso, who had voted for absolute nullity in the trial of President Lula, ruled completely differently in a similar case, stating that the "jurisprudential orientation of the Federal Supreme Court is towards the possibility of ratification of decision-making acts by the competent Court". [5]

In another recent decision, also after the "Lula case", the STF, through her excellency Justice Rosa Weber, who had also voted for absolute nullity in the case of President Lula, decided, in a similar matter, to confirm the receipt of the claim, despite the absolute lack of jurisdiction of the prosecuting court. Completely disregarding the judgment previously rendered by the Court´s Plenary, Justice Rosa Weber affirmed that "based on the theory of apparent jurisdiction, this Supreme Court has endorsed the possibility of ratification of procedural acts realized by a court with apparent jurisdiction at the time they were performed". Moreover, the eminent Justice, disagreeing with what had been decided in President Lula´s case, pointed out that "the allegation and demonstration of damage are necessary conditions for the recognition of nullities, whether absolute or relative, 'because procedural nullity is not decreed by mere presumption" (HC 107.769/PR, Reporting Justice Carmen Lúcia, 1st Panel, DJe 28.Nov.2011). [6]

In addition to this contradictory orientation in relation to the Plenary´s decision, established in HC 193,726 AgR, on 15.Apr.21 and reported by the eminent Justice Edson Fachin, the divergence of the Superior Court of Justice in relation to the understanding adopted by that same Plenary of the Supreme Court regarding the "Lula case" is also concerning.

These conflicting manifestations, both from Justices of the Supreme Court itself and from the Criminal Panels of the Superior Court of Justice, can cause serious legal insecurity in the Brazilian judicial system, because the paradigm involving the "Lula case" was decisive for the 2022 elections, as it enabled Lula´s candidacy. Furthermore, this parameter set by the Supreme Court adopted the criterion of absolute nullity derived, at least, from absolute lack of jurisdiction, distinct in art. 567 of the Code of Criminal Procedure, which, to us, seems correct in the legal field. As a matter of fact, this criterion is in line with the treatment given by the Federal Supreme Court to nullity deriving from suspicion of bias of a judge, as decided in the writ of Habeas Corpus 164,493/PR, reported by the eminent Justice Gilmar Mendes, in as much as suspicion, as well as the absolute lack of jurisdiction, refers to the principle of the natural judge (Federal Constitution, art. 5, XXXVII and LIII). [7]

It is neither reasonable nor comprehensible, that after the judgment of the paradigm set in HC 193,726 (ED and AgR), reported by Justice Edson Fachin, Justices of the Federal Supreme Court could, in individual monocratic decisions, go back on their own understanding and, without any justification, simply disregarding and ignoring the votes cast in the Plenary, reformulate their own jurisprudence, in a random and arbitrary manner.

In this same context, the Superior Court of Justice has also not obeyed the jurisprudence of the Supreme Court´s Plenary by treating absolute lack of jurisdiction as if it were possible to revalidate the receipt of complaint acts.

In this same context, the Superior Court of Justice has also not obeyed the jurisprudence of the Supreme Court´s Plenary by treating absolute lack of jurisdiction as if it were possible to revalidate the receipt of complaint acts.

It is important to consider the decision by eminent Justice Ribeiro Dantas, which states that "if the absolute lack of jurisdiction of the Federal Court is recognized, the criminal action must be sent to the Specialized Court, but with only the annulment of the decisionmaking acts and without prejudice to their ratification by the competent court". [8]

In the same vein, and echoing the orientation of the Superior Court of Justice, the eminent Justice Reynaldo Soares da Fonseca decided, in a matter of public order, after the trial of the "Lula case", that "once the competence of the Electoral Justice to understand the context presented in the present records is verified, in view of the connection with the crime of “slush funds” (Caixa 2), the decision-making acts must be considered null and void, under the terms of art. 567 of the Code of Criminal Procedure, emphasizing the possibility of ratification of the other acts by the competent Court". [9]

This scenario proves that it is necessary to definitively adjust the decisions and jurisprudence of both the Federal Supreme Court and the Superior Court of Justice to the precedent reported by Justice Fachin, so that there is an equal treatment of defendants, establishing the thesis that absolute lack of jurisdiction causes irreparable nullity in the proceedings.

Evidently one cannot accept, under any circumstances, that the judgment of a paradigm as important as the one involving President Lula was an exception in the STF´s jurisprudence or an exceptional judgment. The Justices of the Federal Supreme Court, in individual monocratic decisions, are obliged to follow the orientation of the Plenary, especially because the authors of these individual monocratic decisions have subscribed to the understanding of the Plenary. And it is up to the Superior Court of Justice to definitively bend to the understanding of the Supreme Court. Legal security and predictability are premises of a Democratic Rule of Law, as is the equal treatment of all before the Law.

FÁBIO MEDINA OSÓRIO, lawyer, former Federal Attorney General (President Michel Temer´s administration), former Prosecutor in the State of Rio Grande do Sul.

[1] HC 193.726 ED, j. on 08.Mar.2021.

[2] HC 193726 AgR, rapporteur: EDSON FACHIN, Full Session, Ruled on em 15/Apr/2021, E-CASE DJe-174 DISCLOSED 31-Aug-2021 PUBLISHED 01-Sep-2021.

[3] Rcl 43.479 ED, rapporteur: GILMAR MENDES, Second Panel, ruled on 10/Aug/2021, DISCLOSED 03-Nov2021. Motions to Clarify judged on 22.Nov.21.

[4] HC 200147 AgR, rapporteur: EDSON FACHIN, rapporteur of entry of judgment: RICARDO LEWANDOWSKI, 2nd Panel, ruled on 05/Dec/2022, PUBLISHED 13-Dec-2022.

[5] RHC 209.411, rap. ROBERTO BARROSO, 02.Dec.21. Individual Monocratic, confirmed in collegiate decision: RHC 209411 AgR, Rapporteur: ROBERTO BARROSO, First Panel, ruled on 21/Mar/2022, E-CASE DJe-055 DISCLOSED 22-Mar-2022 PUBLISHED 23-Mar-2022. Along these lines, Justice Barroso also cites the following judgments: HC 83.006, Rap.. Justice. Ellen Gracie; RHC 122.966, my reporting; RHC 153.869-AgR, Rap. Justice Celso de Mello; HC 137.438-AgR, Rap. Justice Luiz Fux; and RHC 198.182-AgR, Rap. Justice Rosa Weber.

[6] HC 185755 AgR, Rapporteur: ROSA WEBER, First Palne, ruled on 08/Jun/2021, E-CASE DJe-113 DISCLOSED 11-Jun-2021 PUBLISHED 14-Jun-2021. The decision was upheld by the first panel (RHC 202614 AgR-ED, Rapporteur: ROSA WEBER, First Panel, ruled on 11/Oct/2021, E_CASE DJe-206 DISCLOSED 15-Oct-2021 PUBLISHED 18-Oct-2021).

[7] HC 164493, Rapporteur: EDSON FACHIN, Rapporteur for Entry of Judgment (Acórdão): GILMAR MENDES, Second Panel, ruled on 23/Mar/2021, E-PROCESS DJe-106 DISCLOSED 02-Jun-2021 PUBLISHED 04-Jun2021

[8] AgRg in REsp n. 1.854,892/PR, rapporteur Justice Jesuíno Rissato (Appellate Court Judge invited by the TJDFT), rapporteur for the entry of judgment Justice Ribeiro Dantas, Fifth Panel, ruled on 5/Oct/2021, DJe of 20/Oct/2021).

[9] HC n. 700.727/PB, rapporteur Justice Reynaldo Soares da Fonseca, Fifth Panel, ruled on 13/Dec/2021, DJe of 16/Dec/2021).