Judge of guarantees: STF forms majority for a period of 2 years – 08/23/2023 – Branch

The STF (Federal Supreme Court) formed a majority this Wednesday (23) for the guarantees judge to be installed in the courts of Brazil within 12 months after the end of the trial, with the possibility of an extension of another 12 months under justification.

Ministers Dias Toffoli, Cristiano Zanin, André Mendonça, Edson Fachin, Luís Roberto Barroso, Cármen Lúcia and Gilmar Mendes have already voted in this direction.

It is the 10th session of the court that deals with the model of the judge of guarantees, who divides the responsibility of the processes between two magistrates.

Other ministers have already voted for the mandatory installation of this instrument, such as Alexandre de Moraes and Kassio Nunes Marques, but with other deadlines.

Alexandre de Moraes 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.

Luiz Fux, rapporteur of the process, voted against this imposition of changes in the courts.

One of the ministers who voted this Wednesday, Barroso, despite voting for it to be mandatory, said that he does not think that “the introduction of the guarantees judge faces the major problems that I identify in the Brazilian punitive system”.

“No judge of guarantees is not the solution that I would find for the central problems of the penal system, of the Brazilian punitive system. The Brazilian punitive system has an ambiguity, it is excessively punitive on one side and excessively lenient on the other”, said the minister.

“We oscillate between punitivism and impunity. Punitiveness and impunity tend to have social class and color. We have a criminal law that is very tough on the poor and extremely gentle on the criminality of the rich, white collar and private appropriation of State.”

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

The court already has a majority for another point: 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 vote, 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).

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.