For lawyers, the Supreme Court weakened the figure that seeks impartiality; electoral courts have until this Saturday (6.Jul) to implement the judge of guarantees
In August 2023, the STF (Supreme Federal Court) recognized the constitutionality of the Law 13.964/2019provided for in the Anti-Crime Package, but vetoed and changed parts that displeased experts. According to criminal lawyers, the Supreme Court “cut up” the necessary proposal to curb judicial bias.
In practice, the rule determines that each criminal case is monitored by 2 judges: while the judge of guarantees monitors the inquiry phase, that is, the investigation, the judge of instruction and trial acts after a complaint from the MP (Public Prosecutor’s Office), at which point the investigation becomes a criminal action.
However, the Court changed key articles, setting a precedent for biased judgment. One of them: article 3rd-Cwhere the STF changed the receipt of the complaint as the phase that ends the performance of the judge of guarantees for the offering of the complaint. In other words, the person who will receive it now will be the judge who will judge the case.
Art. 3-C: “The jurisdiction of the judge of guarantees covers all criminal offenses, except those of lesser offensive potential, and ceases with the filing of the complaint or charge in accordance with art. 399 of this Code”.
The filing phase of the complaint comes before the receipt. This is because the MP (Public Prosecutor’s Office) files the complaint and then the judge decides whether or not to accept the accusation (receipt phase). In this phase, the judge analyzes whether there is materiality and evidence of authorship.
The problem with the modification, according to experts, is that the aim of the judge of guarantees is precisely to separate the contact with information prior to the complaint from the trial judge in order to avoid contamination of the judgment.
As stated by the expert in criminal procedural law Aury Lopes Jr to the Poder360the STF “cut up” the judge of guarantees and the Anti-Crime Package. “There was no room in the law to end the jurisdiction of the judge of guarantees in the offer. The judge of the case receiving the complaint is not ideal, because accepting or not accepting the accusation already demands a high degree of assessment and there is a risk, yes, of contamination in the judgment”he stated.
The STF’s biggest mistake, according to him, was to consider it unconstitutional “something primary”which is the physical exclusion of the investigation records from the trial process.
The Court declared unconstitutional Article 3 – C, paragraphs 3 and 4 of the CPP, which guaranteed information within the jurisdiction of the judge of guarantees – which a priori would only be available to the defense and the Public Prosecutor’s Office – they would not be passed on to the case files sent to the trial judge, to avoid contamination.
Another error in guaranteeing impartiality, says Lopes Jr., was to declare art. 3º D unconstitutional. The device states that the judge who, in the investigation phase, commits any act included in the jurisdiction of art. 4º and 5º of the code, that is, within the jurisdiction of the judge of guarantees, will be prevented from acting in the process.
For the lawyer, therefore, even though the judge of guarantees has been regulated to minister on the investigative phase, the STF allows the investigating judge to have access to the accusatory argument offered by the Public Prosecutor’s Office is “totally contradictory”.
“As a lawyer, I can’t understand half of what the Supreme Court did. Because half of what was done was not constitutional review, it was just saying ‘we like it or not and we’re going to rewrite the article’. There’s a lot there that would never be unconstitutional, and only the Supreme Court saw that.”he highlights.
There is yet another contradictory act, according to the criminal law expert Andre Damianiwhich is the possibility for the trial judge to produce evidence. The ministers interpreted article 3-A of the CPP in accordance with the Constitution, determining that the judge, punctually and within the limits of legality, may order additional steps to resolve doubts on a relevant point, at the time of issuing a decision.
For Damiani, “if the criminal action was not proven and if the investigation provided minimal support for a complaint”it should not be the judge’s role to seek assistance from the Public Prosecutor’s Office.
ANDThere is a Latin expression in the legal field that governs the system, called “in dubio pro reo” (in free translation, “when in doubt, in favor of the defendant”). The principle expresses that, if there is doubt in the criminal proceedings, due to lack of evidence, the Judge’s interpretation must be in favor of the accused.
Damiani says the measure preserves a “exit option” so that judges can preserve a common procedure in the Court [abertura de diligência]mainly made by Moraes. The minister is the rapporteur of the inquiry into fake news and was involved in controversial decisions in the Supreme Court when he was a victim of the cases, investigated and judged the cases.
According to experts, the STF’s position is “protagonist” and endorses the false understanding that the judge is the center of the trial, when it should be the evidence. “There is a lack of understanding of our accusatory system, which is not a problem specifically of the judge of guarantees, but of the understanding that the one who produces the evidence is the Public Prosecutor’s Office, and that’s it”he said.
Implementation
On August 23 of last year, the STF determined that the courts must implement the guarantee judge within a period of 12 months, which may be extended, upon justification, for another 12 months. Therefore, the courts of Justice must implement the device by the end of August of this year, 2024.
The TSE, due to the municipal elections, gave a deadline of 60 days for implementation on May 7, therefore, the electoral courts have until this Saturday (Jul 6) to implement it. The CNJ was responsible for regulating the judge of guarantees. The resolution was approved on May 28.
According to experts, the deadline should not be a problem, given that the judiciary has been preparing for implementation since 2019, when the judge was created. In some states, such as Rio de Janeiro and São Paulo, there are already courts with a model similar to the guarantee judge, where departments only handle investigations.
“It seems to me that the TSE is very concerned about the next municipal election. So, it should think about the judge who is responsible for investigating the facts, which could be electoral crimes, possible suspension measures, issues related to party funds, precautionary and preventive issues that have a very big impact, so the judge responsible for guarantees should have a lot of responsibility.”says Damiani.
In small municipalities with a single court, experts say that this should not be a problem, since the other party in the case will be able to cross-distribute the case. In other words, a judge from a nearby city will hear the case. Another possibility, pointed out by Lopes Jr., is the creation of an online center. According to him, the online method of justice has been efficient since the pandemic.
This is how the guarantor judge is expected to act:
- Start of investigation – the Police and/or Public Prosecutor’s Office initiate(s) an investigation into a suspected crime;
- Guarantee judge begins to act – if any measures are necessary, such as breaking confidentiality, search and seizure operations and ordering or suspending precautionary arrests, the person responsible for the decisions at this stage of the investigation will be responsible;
- Rights and legality preserved – the judge of guarantees will also be responsible for deciding requests regarding alleged illegalities in the investigations and possible breaches of the rights of those under investigation;
- Complaint – if the Public Prosecutor’s Office reports the suspect, the judge of guarantees will decide whether or not criminal proceedings should be opened;
- Trial of the case – after the opening of the trial, the case will be passed to a second judge, who will decide whether or not the accused should be criminally convicted.
UNDERSTAND
The guarantee 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 (Brazil-PR Union).
However, Moro was against the creation of the judge of guarantees. This figure of the investigative judge was included in the package by an amendment authored by congressman Marcelo Freixo (PSOL-RJ) and maintained by the former president. This divergence was considered controversial because it was one of the only measures of the former president criticized by Moro at the time.
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