Guarantees judge: Majority of the STF supports the creation of a system – 08/17/2023 – Power

The STF (Federal Supreme Court) formed a majority in favor of the mandatory installation of the guarantee judge model, which divides the responsibility for cases between two judges.

Ministers Dias Toffoli, Cristiano Zanin and André Mendonça had already voted in favor of this possibility. This Thursday (17), Alexandre de Moraes concluded his vote. Kassio Nunes Marques and Edson Fachin were in favor of mandatory implementation.

Only Minister Luiz Fux voted against making the guarantees judge mandatory. Justices Luís Roberto Barroso, Cármen Lúcia, Gilmar Mendes and the president of the Supreme Court, Rosa Weber, have not yet voted.

The trial, which began in June, should continue in the session next Wednesday (23).

But even the ministers who expressed their support for mandatory diverge from the period of installation of the model.

For Toffoli, Zanin, Mendonça and Fachin, the guarantee judge should be implemented within a period of 12 months, extendable for another 12 under reasoned justification.

Alexandre de Moraes, on the other hand, proposed 18 months, although he stated that he can modify the understanding to follow colleagues who foresee other deadlines. Kassio Nunes Marques defended that the measure should only be implemented in 36 months.

The instrument of the judge of guarantees divides the judgment of criminal actions between two judges: one authorizes investigation diligences and the other judges the defendant.

The court already has a majority for another topic: the guarantee judge will not be responsible for receiving the complaint, but the magistrate who will pass sentence at the trial.

Fux, rapporteur for the processes on the subject, cast his vote in June, three years after suspending the installation of the model.

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 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.

He also stated that all Brazilian judges are judges of guarantees, during the investigation and procedural instruction, “responsible for them to watch over the fundamental rights guaranteed by the Constitution”.

Upon resuming the trial in August, Toffoli spoke out in favor of creating the instrument, within 12 months for the courts to adopt measures for the implementation and installation of the guarantee judge.

This period could be extended only once, for another 12 months, under justification to be presented to the CNJ (National Council of Justice).

In letters sent to the Supreme Court, the judges who preside over the state courts report budgetary and structural difficulties for the change.

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

After the sanction, Toffoli, then president of the Supreme Court, postponed the implementation of the measure for six months and created parameters for the change. All of this was suspended in January 2020 by Fux, who is the rapporteur for the cases. At the time, he also suspended the installation of the model.

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.

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, which is 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.

“It 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 the Justice”, says the president of the national OAB, Beto Simonetti.