Recent, widely reported cases reveal worrying patterns. Evidentiary confusion or flawed investigations lead to innocent people remaining incarcerated for months or even years.
This scenario reveals that the error does not occur in an isolated or exceptional way, but takes on structural contours, reflecting persistent deficiencies in both investigative activity and the judicial decision-making process. The gravity is accentuated when convictions are based on weak, insufficient, or dissociated evidence from the factual-probative context.
For example, when an individual is sentenced to a prison term exceeding 29 years, in a closed regime, without even matching the physical descriptions provided by the victims, this demonstrates a serious flaw in the investigation of the facts and in the evaluation of the evidence, incompatible with the guarantees of due process and the presumption of innocence.
In these cases, not only is the dignity of the human person directly violated, but the credibility of the justice system itself is also compromised, as its legitimacy rests on rationality, legality, and the effective protection of fundamental rights.
How does the State's civil liability manifest itself in these situations, and what are the criteria for identifying it?
As a general rule, it can be inferred from Article 37, §6 of the Federal Constitution that the civil liability of public legal entities and private legal entities providing public services is objective and based on the theory of administrative risk.
The legal provision stems from the fact that the State, in carrying out its administrative activities and functions, by its very nature, can generate risks to the community. Policing, oversight, the provision of public services, investigative activities, and even the practice of judicial acts are concrete examples of this potential risk.
The theory adopted is based precisely on this premise that, in carrying out its administrative activities, the State assumes the risk for any damages it may cause to third parties, regardless of whether the action was intentional or negligent.
In short, establishing the duty to indemnify involves fulfilling the following requirements:
a) occurrence of the damage;
b) administrative action or omission;
c) existence of a causal link between the damage and the administrative action or omission; and
d) absence of a cause excluding state liability.
In turn, Article 5, item LXXV, expressly ensures that "the State shall indemnify those convicted by judicial error, as well as those who remain imprisoned beyond the time fixed in the sentence." This is a fundamental guarantee aimed at mitigating, at least in part, the damages caused by failures of the state apparatus itself.
At the sub-constitutional level, the Code of Criminal Procedure, when dealing with criminal review, also recognizes the possibility of correcting unjust decisions and paves the way for reparation of damages suffered by the wrongfully convicted person.
In light of these criteria, it is observed that failures in institutional procedures reveal an unequivocal possibility of state liability towards individuals harmed by the actions of public agents.
The duty to compensate in the face of state failure.
In the judgment of (RE) 1467145, Minister Cármen Lúcia emphasized that the State must recognize when it errs. And when it errs, it must be held accountable to the extent of the damage caused. This understanding reinforces the need for reparation whenever there is a causal link between the conduct of a public agent and the damage suffered by the individual, reaffirming the State's duty to answer for its failures and omissions.
Minister Cármen Lúcia's statement, therefore, does not inaugurate a new paradigm; it reaffirms what constitutes the very reason for the existence of state civil liability: the submission of Public Power to the Law and the centrality of protecting the citizen.
This premise reinforces the need for redress whenever there is a causal link between the conduct of a public agent and the damage suffered by the individual, reaffirming the state's duty to answer for its failures and omissions.
Alexandre Mazza argues that the state's duty to compensate individuals for damages resulting from the actions of public agents has two central foundations: legality and equality. When the harmful act is unlawful, the obligation to compensate arises from the violation of the principle of legality, since the state's conduct deviates from the limits imposed by the legal system.
On the other hand, when a lawful act causes special and abnormal harm to a particular individual, the basis of liability shifts to the principle of equality, specifically to the idea of equitable distribution of social burdens, a corollary of equality before the law. In this case, it is not acceptable for an individual to bear alone the burdens arising from state action aimed at the collective interest.
In a passage referring to recent Supreme Court jurisprudence on police operations — especially ARE 1.385.315 (Topic 1237) — it corroborates that, upon recognizing an error or failure in service, the duty to compensate arises.
Therefore, anyone who suffers patrimonial or non-patrimonial damage resulting from an act or omission by a public agent may claim corresponding compensation, either administratively or through the courts. Administratively, the request for compensation can be made to the competent authority, which must initiate its own procedure to determine responsibility and decide on any eventual payment of compensation. However, in practice, the judicial route is the most commonly used, through the filing of a lawsuit for damages.
A claim for damages is one filed by the victim against the legal entity to which the public agent responsible for the damage is linked, whether it is a public legal entity or a private legal entity providing a public service.
In the judgment of Extraordinary Appeal No. 327.904/SP, on August 15, 2006, the Supreme Federal Court established an understanding that precludes the possibility of filing a direct indemnification action against the public official who caused the damage. Based on this precedent, the Court came to understand that the public official's liability must occur exclusively through a recourse action filed by the State itself, when intent or negligence is established.
According to the Brazilian Supreme Court (STF), this system constitutes a true double guarantee. On the one hand, it protects the injured individual by ensuring the possibility of directly suing the legal entity responsible for providing the public service, whose solvency makes the reparation of the objectively suffered damage more effective. On the other hand, it safeguards the public agent, who can only be held civilly and administratively liable to the state entity to which they are functionally linked, thus preventing the direct exposure of the public servant to compensation lawsuits filed by private individuals.
This understanding superseded the previously existing guideline, which allowed the victim to choose whether the compensation claim would be filed against the public agent, against the State, or against both in passive joint litigation. With the new constitutional interpretation, the possibility of passive joint litigation between the state entity and the agent causing the damage in a compensation claim filed by a private individual was eliminated.
Thus, the public agent is only civilly and administratively liable to the legal entity to which he/she is linked, with the State being responsible, if necessary, for filing a claim for reimbursement of damages, pursuant to Article 37, § 6, of the Federal Constitution.
Judicial error stricto sensu and service failure
Despite the clarity of Article 5, LXXV, Brazilian legal doctrine and jurisprudence establish a fundamental distinction for the application of state liability within the scope of the judicial function.
Judicial error stricto sensu, as provided for in the Constitution, refers to a final criminal conviction of an individual who is subsequently acquitted through criminal review. In these cases, the State's liability is objective, requiring only proof of the error and the damage, without the need to demonstrate malice or negligence on the part of the magistrate. The Constitution itself imposes the duty to compensate.
However, the general rule for other jurisdictional acts and preparatory acts (police investigation, for example) is the application of the theory of service failure (or faute du service).
In these cases, the State's liability is subjective in relation to the judge's act, requiring proof of malice, fraud, or gross negligence (inexcusable error) on the part of the magistrate, according to the majority interpretation of Article 133 of the Code of Civil Procedure (CPC).
The major area of intersection and debate lies in the failure of the public justice service, which includes unjustified delays, deficiencies in investigative activity (such as those mentioned in the factual context), or the improper maintenance of pretrial detention.
The State's liability in these situations reverts to being objective (Article 37, §6, of the Federal Constitution), since the damage does not arise directly from the content of the judicial decision itself (the merits), but rather from the poor provision of public service. The jurisprudence of the Supreme Federal Court (STF) and the Superior Court of Justice (STJ) is consistent in recognizing the State's objective liability for excessive or illegal pretrial detentions, even if the initial decision was legal.
Conclusion
The civil liability of the State for acts of judicial and investigative functions is a pillar of the Democratic Rule of Law. The guarantee of compensation to individuals harmed by judicial error or failure in the provision of justice transcends mere economic reparation; it is a reaffirmation of the supremacy of the Constitution and the dignity of the human person.
Acknowledging the error, fully repairing the damage, and exercising the right of recourse are essential mechanisms for maintaining confidence in the justice system and for the continuous improvement of investigative and decision-making practices.
For justice to be complete, it must be able to recognize and correct its own failings, ensuring that the burden of state error does not fall on innocent citizens. The path to a more just and equitable system inevitably involves the rigorous application of the principles of objective liability and the protection of fundamental rights.
References
BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil of 1988. Brasília, DF: Presidency of the Republic, 1988.
BRAZIL. Supreme Federal Court. Extraordinary Appeal No. 1.467.145. Rapporteur: Justice Cármen Lúcia. Judgment by the Plenary. Brasília, DF, Supreme Federal Court.
BRAZIL. Supreme Federal Court. Extraordinary Appeal No. 327.904/SP. Decided on August 15, 2006. Official Gazette, Brasília, DF.
BRAZIL. Supreme Federal Court. Extraordinary Appeal No. 499.432 AgR. Rapporteur: Justice [Name of Justice]. Alexandre de Moraes. First Panel. Judged on August 21, 2017. Electronic Official Gazette, Brasília, DF, no. 197, published on August 31, 2017, released on September 1, 2017.
BRAZIL. Supreme Federal Court. Extraordinary Appeal with Aggravation No. 1.385.315/RJ. Rapporteur: Justice Edson Fachin. Plenary. Decided on April 11, 2024. General Repercussion – Theme 1237. Electronic Official Gazette, Brasília, DF.
BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure . Official Gazette of the Union: section 1, Brasília, DF, March 17, 2015.
BRAZIL. Decree-Law No. 3.689, of October 3, 1941. Code of Criminal Procedure. Official Gazette of the Union: section 1, Brasília, DF, October 13, 1941.
DI PIETRO, Maria Sylvia Zanella. Administrative Law. 36th ed. São Paulo: Atlas, 2023.
MAZZA, Alexandre. Manual of administrative law. 14th ed. São Paulo: Saraiva, 2024.
(2) BRAZIL. DF will compensate man arrested due to failure in police investigation . Migalhas, 2025. Available at: https://www.migalhas.com.br/quentes/361332/df-indenizara-homem-preso-em-virtude-de-falha-na-investigacao-policial . Accessed on: Dec. 14, 2025.
DUQUE, Felipe. Civil liability of the State and judicial error: cases of wrongful imprisonment in Brazil? Estratégia Carreira Jurídica, July 26, 2024. Updated July 27, 2024. Available at: https://cj.estrategia.com/portal/responsabilidade-civil-erro-judiciario-prisoes/ . Accessed December 14, 2025.
BRAZIL. Supreme Federal Court. Extraordinary Appeal No. 499.432 AgRRapporteur: Minister Alexandre de Moraes. First Panel. Judged on August 21, 2017. Electronic Official Gazette, Brasília, DF, no. 197, released on August 31, 2017, published on September 1, 2017.
