Fux says that the guarantees judge seduces like ‘the siren song’, but that it can generate chaos in the Justice – 06/21/2023 – Power

Minister Luiz Fux began his vote on the installation of the guarantees judge by criticizing the model, in judgment this Wednesday (21) at the STF (Federal Supreme Court).

Fux is the rapporteur for the case that analyzes the model that divides the conduct of criminal cases between two judges. By rule, one judge would be responsible for the investigation phase, while the other would be in charge of the trial.

During his speech, the minister stated that the name judge of guarantees is seductive like “the siren’s song”, but that the imposition of the law could generate chaos in criminal justice. This is because, according to him, the norm would ignore the lack of magistrates in the country with continental dimensions and the difference between the states.

“About 65.6% of the districts in Brazil are provided with only one court and that, due to a cognitive bias, the magistrate who oversees the fundamental rights of the investigated person would be prevented from working in the process. It is easy to see that this change would create a chaos in criminal justice,” he said.

Fux also stated that all Brazilian judges are judges of guarantees, during the investigation and procedural instruction, “assigning them to ensure the fundamental rights guaranteed by the Constitution”.

He added that there is no guarantees judge more efficient than the judge himself and that judges already have the task of preventing abuses in the investigative phase.

“This protection of guarantees is intrinsic to our profession, which is required of all of us magistrates. The judiciary’s own code of ethics recommends that the magistrate must respect the Constitution and the laws of the country, seeking to strengthen institutions and full appreciation of democratic rights.”

However, he said that this does not inhibit the improvement of an institution that needed to be matured and that the current system can improve over time.

The guarantee judge model was approved by Congress at the end of 2019 and sanctioned by then-President Jair Bolsonaro (PL).

After the sanction, the then president of the Supreme Court, Dias Toffoli, postponed the implementation of the measure for six months and created parameters for the change.

All this was suspended in January 2020 by Fux, which also suspended the installation of the model.

Fux justified that the suspension of the law by him was generated by “judicial duty of responsibility and not of passion”, which was preceded by bad examples, but isolated examples are not useful for a new system to be created.

In addition, he stated that the norm was not created to improve the situation of crimes committed in distant regions, such as in cases of petty theft, but for a purpose “completely different from retail crimes”.

Despite the criticism, Fux did not complete his vote during the session. The expectation of the ministers’ interlocutors is that the minister, who is a career magistrate, will vote against the guarantees judge model.

The rapporteur has a history of acting in the STF favorable to class demands, and the proposed model of the judge of guarantees has raised a series of complaints both from entities and from the courts.

Defenders of the proposal claim that it will give more impartiality to trials. Critics say that the measure can result in accumulation of work for magistrates and make it difficult to elucidate complex cases, which require specialization from the magistrate.

During his support, the Attorney General of the Republic, Augusto Aras, said that the appointment of different judges to act in different stages of the criminal procedure is compatible with the protection of fundamental rights and guarantees and that there is no unconstitutionality that can be attributed to it. .

However, he made some reservations about its implementation. He said, for example, that it makes no sense for the Federal Public Ministry to inform the judge about the initiation of any criminal investigation, as it is not up to the magistrate to interfere in the conduct of the investigative procedure.

He also said that it is not up to the judge to commit acts that interfere with the progress of the investigation, such as extending the period of its duration or determining its locking.

“Allowing the magistrate to interfere in the conduct of the police investigation violates the accusatory system, as it compromises its impartiality. “, he said.

In addition, he said that it is inconsistent with the accusatory system to allow the judge to request documents, reports and information from the police chief about the progress of the investigation. The addressee of the inquiry is the Public Ministry. It is up to him to propose to the delegate what he deems pertinent.

“Assigning this power to the judge is equivalent to consenting to undue interference in the exercise of the core activity of the criminal prosecution bodies and in the course of the investigative process, compromising the impartiality of the jurisdictional activity”, he said.

The representative of the Association of Magistrates of Brazil (AMB) and the Association of Federal Judges of Brazil (Ajufe), Alberto Pavie Ribeiro, said that the entities are not against the judge of the guarantees, but against the model that, among other points, foresees its immediate implementation.

Isadora Arruda, secretary of Litigation at AGU (Attorney General of the Union), said that the model of the judge of guarantees is a successful civilizing experience. She maintained that this solution has been discussed for a long time in the country and that, as it is a procedural rule, it was edited within the exclusive competence of the Union.