Court has 2 votes for mandatory implementation of the provision and 1 for optional adoption; this is the 7th session on the topic
O stf (Federal Supreme Court) resumes this Wednesday (16.Aug.2023) the judgment that deals with the constitutionality of the figure of the judge of guarantees. It is the 7th session of the Court to analyze the issue. So far, 3 ministers have voted. There are still 8 votes left.
The Court analyzes 4 actions of unconstitutionality filed against the figure of the judge of guarantees, mechanism in which a magistrate is responsible for the initial part of the process, at the inquiry stage, while another judge pronounces the sentence.
In the last session of the trial, ministers Dias Toffoli and Cristiano Zanin voted. Both advocated mandatory implementation of the device within 12 months.
The magistrates partially disagreed with the rapporteur for the actions, Minister Luiz Fux. The minister voted for the adoption of the guarantee judge to be optional for each district.
UNDERSTAND
The guarantees judge’s proposal was approved by the National Congress in December 2019 and sanctioned by the former president Jair Bolsonaro (PL), through the anti-crime package, sent by the former minister and now senator Sergio Moro (Union Brazil-PR).
According to the law, “the guarantees judge will be appointed in accordance with the rules of judicial organization of the Union, the States and the Federal District, observing objective criteria to be periodically disclosed by the respective court”. The measure prevents the process from being linked to a single judge, making the judicial system more independent.
In practice, the rule determines that each criminal case is monitored by 2 judges: while the guarantees judge monitors the investigation phase, that is, the investigation, the investigation and trial judge acts after a complaint by the MP (Public Ministry), moment when the investigation becomes a criminal action. Here is how the performance of the guarantee judge is expected:
- Start of investigation – the Police and/or Public Ministry initiate(s) an investigation of suspected crime.
- Guarantees judge begins to act – if any measure is necessary, such as breach of secrecy, search and seizure operations and decree or suspension of precautionary arrests, the guarantees judge will be responsible for decisions in this phase of investigation.
- Preserved rights and legality – it will also be up to the guarantees judge to decide requests on alleged illegalities in the investigations and on possible non-compliance with the rights of those being investigated.
- Complaint – if the Public Ministry denounces the suspect, the guarantees judge will decide whether or not criminal proceedings should be opened.
- Judgment of the process – after the opening of the process, the case will pass to a second judge, who will judge whether or not the accused should be criminally convicted.
The implementation of the model was supposed to take effect on January 23, 2020, but Fux suspended the measure indefinitely through an injunction.
The 4 actions analyzed by the Court were presented by the parties União Brasil (at the time, PSL), Podemos and Cidadania, in addition to entities representing the legal community, such as the AMB (Association of Brazilian Magistrates), Ajufe (Association of Federal Judges of Brazil ) and Conamp (National Association of Members of the Public Ministry).
The authors question the competence of the Union to deal with the case, in addition to the deadline and the financial impact for the application of guarantees by the judge.
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