Fux criticizes the guarantees judge’s mechanism and says that alleged partiality is unconstitutional

Minister Luiz Fux, of the Federal Supreme Court (STF), said this Thursday (22) that the rules that establish the judge of guarantees, which is under analysis in the Court, are unconstitutional as they presume the partiality of the judge who acts in the initial phase of the criminal process. The magistrate, who is also the rapporteur for the action, said that any partiality of the magistrate should be analyzed based on the existing rules of the Code of Civil Procedure itself.

According to the minister, who will continue with the vote next Wednesday (28), that the conduct of a process without “bias” does not minimize a possible partiality of criminal judges when sharing functions between the judge of guarantees and the judge of instruction.

For the rapporteur, the obligation for the states and the Federal District to install judicial branches where the judge of guarantees will act, with exclusive competence for the investigation phase, is also unconstitutional. He considers that the Union, through the National Congress, could not define norms for the functioning of the criminal justice of the other federated entities that, according to the Federal Constitution, have competence to legislate on the structure and functioning of the local Judiciary.

In addition, he stated that the norms on the judge of the guarantees provided for in the law are procedural and, therefore, could not be included in a parliamentary amendment project. For him, the mandatory existence of two criminal courts in each district, with different competences, eliminates the possibility that each state distributes judges and courts according to local needs and the number of demands in each matter.

“The norm would generate real chaos in judicial units across the country, as it would require the automatic interruption of all ongoing criminal actions, forcing localities to arrange for the replacement of judges in criminal cases,” he said.

Still according to the magistrate, the institution of the guarantees judge alters “in a profound way” the division and organization of judicial services, which would require a complete reorganization of the country’s criminal justice – this type of alteration could only be proposed by the Judiciary.

Fux recalled that the STF has already suspended a constitutional amendment that had created a federal regional court, for offense to the separation of powers, as the proposal had not been sent by the Court. The institution of the guarantee judge would also cause an increase in expenses that was not taken into account by the bill.

Shortly after Fux’s vote, Minister Dias Toffoli announced that he would request a review of the trial.