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STF closes criminal action against lawyer who used cell phone in instruction hearing

18/02/2021

HC 194092 / SP granted order

Minister Gilmar Mendes, of the Supreme Federal Court (STF), granted the order at HC 194092 / SP, in order to close the criminal proceedings pending in the 3rd Criminal Court of the São Paulo Judicial Section, brought against a lawyer who allegedly disobeyed the order of a magistrate for not using his cell phone during an instructional labor hearing.

The specific case concerns a criminal procedure involving a lawyer who allegedly violated Article 330 of the Penal Code, when he disobeyed the determination of a labor judge not to use his cell phone during the instruction hearing. The defense of the patient maintained the absence of the lawyer ‘s intent, because “the order of the labor judge was manifestly illegal, because the patient naturally exercised her professional prerogative”, thus, there being no “criminal materiality and sufficient evidence of authorship”.

The habeas corpus required the closure of the criminal action, a request denied by the Regional Court of the 3rd Region and Superior Court of Justice. In the judgment given in the TRF-3, it is reported “the judge who presided over the labor hearing determined the lawyer […], several times, to stop using the cell phone during the instruction hearing so that the party or witness has not yet heard not to be aware of the procedural acts already practiced ”.

In the decision that closed the criminal action, it was understood that there was no legal support capable of characterizing the magistrate’s determination as a “legal order”, for purposes of classification, since the Civil Procedure Code allows the use of the cell phone in hearing , allowing the parties, regardless of judicial authorization, the possibility of recording the hearing (art. 367, § 6), with the hypothesis that the magistrate officiating the OAB to investigate the professional’s conduct. In this sense, it was stated that “the law therefore represents a public function, a function that must be respected in all its prerogatives, without unjustified relativisations”.

Minister Gilmar Mendes concluded the decision by stating “in addition to there being no subordination between the patient and the magistrate, the legislator himself authorized the use of the cell phone in hearing, regardless of judicial authorization, which is why it is not a crime to exercise a right conferred by law, the conduct not being narrated in the normative spectrum of scope of the criminal type in question ”.

Wilson Sales Belchior

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