A nulidade e o prejuízo no processo penal: um estudo de caso sobre a Súmula 330 do STJ

Abstract

Nullities and prejudice are subjects of intense debate among the actors of criminal proceedings. However, this debate is marked by a mismatch of values and principles considered in discussions on the matter. Procedural forms are currently essential to limiting the State’s punitive power and ensuring the constitutional and conventional rights of the accused. Nevertheless, although indispensable to due process of law, these forms have been relativized through the uncritical application of principles derived from other branches of law and of values from a Code of Criminal Procedure born in authoritarian times. The central objective of this study is to analyze the foundations of the understanding of the theory of nullities as applied by the Higher Courts in Brazil, through a bibliographic review of criminal procedural doctrine and documentary research on Precedent 330 of the Superior Court of Justice and related case law, using a qualitative approach. In the end, a lack of in-depth debate and the excessive use of arguments from authority by the Higher Courts are observed, reinforcing an authoritarian stance aligned with the Code of Criminal Procedure. The text concludes by emphasizing the urgency of a system of nullities specific to criminal procedure and of a new Code grounded in the 1988 Constitution.