In a recent decision rendered on June 3, 2025, in Special Appeal No. 2.136.836/SP, the Third Panel of the Superior Court of Justice reaffirmed its understanding that procedural speed cannot compromise fundamental rights in the process, such as the right to a fair hearing and a full defense. The case dealt with the nullity of a judgment rendered in a virtual trial session held without prior summons to the parties’ lawyers.
The appellants then filed an action for damages against a construction company, alleging hidden defects in the property they had purchased, in particular the existence of sewage tanks in their private area, which would have caused a devaluation of their property and various inconveniences. The verdict was partially in favor of the plaintiffs, recognizing material and moral damages. In an appeal filed by the construction company, the São Paulo Court of Justice dismissed the condemnation for moral damages.
However, the trial of the appeal took place virtually, just one day after the case was assigned, without the lawyers of the plaintiffs/defendants being notified of the inclusion of the case on the agenda. The summons of assignment was only given after the trial had taken place, thus making it impossible to express any opposition to the virtual session, to present memorials or to hold oral arguments.
Reporting Justice Ricardo Villas Bôas Cueva, in his vote, accepted the thesis of a curtailment of defense, pointing out that the lack of prior summons for the virtual session contravenes express rules of the Code of Civil Procedure (articles 935 and 937) and resolutions of the National Council of Justice, such as Resolution No. 314/2020, issued due to the COVID-19 pandemic, which require prior notice to the parties.
The ruling also addressed the lower court’s claim that there would be no nullity because the plaintiffs had not shown prejudice. The STJ gave a clear answer to this argument: the nullity resulting from failure to respect the adversarial process and the full defense is objective, and does not depend on concrete proof of damage, especially when the trial takes place unexpectedly and prevents the defense from acting technically.
The Panel unanimously annulled the judgment of the TJSP and ordered that the case file be returned for a new trial of the appeal, with due observance of the legal deadlines for summoning the parties.
The case law reaffirms the cogent nature of the constitutional guarantees of the process and establishes an important brake on the indiscriminate adoption of virtual trials without the proper knowledge of the parties.
This is a paradigmatic judgment, as it involves the conflict between the quest for speed and the need to guarantee a fair and effectively adversarial process. The STJ made it clear that, even in times of digital transformation and the virtualization of justice, respect for procedural guarantees remains non-negotiable.
The STJ’s decision in REsp 2.136.836/SP is didactic in demonstrating that due process requires more than efficiency: it requires predictability, transparency and effective participation by the parties. At a time when virtual sessions are becoming more widespread, this ruling serves as a warning to courts, magistrates and legal practitioners about the limits of digitalization.
By reaffirming that the absence of a subpoena for a virtual session implies the nullity of the trial, the Supreme Court reaffirms its role as guarantor of fundamental procedural rules and prevents form from supplanting content in the exercise of jurisdiction.
Available in: https://www.migalhas.com.br/depeso/434541/obrigatoriedade-da-intimacao-previa-em-sessoes-virtuais-e-seus-limites
Autor: Daniel Feitosa Naruto • email: daniel.naruto@ernestoborges.com.br • Tel.: +55 67 3389 0123
