Fux votes against guarantees judge after 3 years – 06/28/2023 – Power

The minister of the STF (Federal Supreme Court) Luiz Fux voted this Wednesday (28) against the mandatory implementation of the guarantees judge in the states, a model approved in 2019 that divides the conduct of criminal proceedings between two magistrates.

For him, each court could decide whether or not to install the model. According to the minister, Congress invaded the jurisdiction of the states by legislating on the subject.

The trial will be interrupted because Minister Dias Toffoli decided to request a review (more time for analysis), with the forecast of being resumed in August, after the recess of the Judiciary.

On his return, the last nominee by President Lula (PT) to the Supreme Court, Cristiano Zanin, will be able to vote on the issue.

By rule, one judge would be responsible for the investigation phase, while the other would be in charge of the trial.

“Under the terms imposed by law, the judge of guarantees is nothing more than a seductive name for a clause that will attempt against the implementation of the constitutional guarantee of the reasonable duration of the processes, of access to Justice for the normativity of fundamental rights”, said Fux, at the end of the your vote in this Wednesday’s session. He had started reading his manifestation last week.

In the previous session, he had said that the name guarantee judge seduces like “the siren’s song”, but that the imposition of the law could generate chaos in the criminal justice system. This is because, according to Fux, 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, last week, 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”.

During the trial, the minister clashed with the dean of the court, Gilmar Mendes, an assiduous defender of the guarantees judge.

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.

The minister justified that the suspension of the law by him was generated by “judicial duty of responsibility and not of passion”, that it 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”.

Fux justified that parliamentarians requested the retention of the process at the request of parliamentarians, who would address the issue in the discussion of the new Code of Criminal Procedure.

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.

However, the majority of the Supreme Court tends to manifest itself in favor of the guarantees judge, with the possibility of proposing a modulation so that the measure is implemented gradually or after a period that allows the courts to prepare for the change.

This would meet the demands of the courts.

The AMB (Association of Brazilian Magistrates), author of one of the actions that question the guarantees judge, says that the project could have negative impacts on the justice system.

For the entity, the Judiciary does not have the necessary structure to install the judge of guarantees in all the districts of the country, due to lack of magistrates.

The association also states, in a note, that the implementation will bring legal uncertainty due to lack of clarity in the procedures and in the jurisdictional rendering, because it will expand the attributions of the magistrates and will bring work overload.

It also argues that investigations will be paralyzed and impaired due to the lack of sufficient judges to perform this function and judge criminal cases.

The OAB, one of the interested parties in the process, disagrees with the arguments of the entities and has defended that the judge of the guarantees be installed soon.

“The implementation of the guarantees judge is a civilizing advance, it will positively reformulate the systematics of the Brazilian criminal procedure, making effective the right of defense and reinforcing the necessary impartiality of Justice”, he told the Sheet the president of the national OAB, Beto Simonetti.

“The model was under discussion for three years, enough time for the Supreme Court and society to mature the theme through hearings and debates.”

Defenders of the guarantees judge say the proposal will make judgments more impartial.

The approval followed the revelation of messages that suggested collaboration between members of the Lava Jato task force in Curitiba and the then magistrate Sergio Moro. Moro has always spoken out against the measure.