STF judges guarantees judge; understand what can improve or worsen

The Federal Supreme Court (STF) scheduled for this Wednesday (14) the judgment of new rules inserted in the Code of Criminal Procedure, in 2019, which create and regulate the guarantee judge. And that could change the way crimes are investigated and their perpetrators judged in the country.

Currently, it is up to a single judge, in the first instance, to supervise the investigation (inquiry phase, where the evidence is collected in steps that he himself authorizes) and to conduct the criminal action (proceeding phase, in which new evidence can be produced and the parties and witnesses testify) until the final judgment, by conviction or acquittal.

The guarantee judge provides for the division of these functions. One magistrate would act in the investigation and another in the process and trial. The aim is to ensure impartiality. The argument is that when the judge controls the investigation, he is inclined to maintain his position in the final sentence. That is, he forms his conviction right at the beginning of the case and tends to stick to it, even if later the parties – victim, prosecution or investigated – bring new elements, throughout the process, that could be able to convince him of another version of the facts.

The biggest defenders of the law are the lawyers and public defenders, who see in the current criminal procedure a strong tendency to condemn defendants, due to the influence of the investigation carried out by the police. On the other hand, most members of the Public Ministry and the Judiciary oppose the guarantees judge, but not necessarily because of the division itself, but because of the way it was regulated by Congress within the so-called “anti-crime package”, approved in 2019.

The original proposal – formulated by former Minister of Justice Sergio Moro of the government of Jair Bolsonaro (PL), currently a senator for União Brasil (PR) – did not contemplate the institute, which was inserted by deputies under the influence of lawyers and influential entities in the field. of defense. At the time, one of the main reasons given by supporters of the guarantee judge was to prevent cases such as Lava Jato, which had an accelerated pace and unusual results, according to the view of this group.

The defenders of the Lava Jato operation say that this was possible due to a coordinated strategy between the Federal Public Ministry, the Federal Revenue Police, Coaf and other control bodies in the investigation. Critics point to alleged “collusion” by the prosecution with the judge, which would make the processes vitiated by partiality, from the beginning of the investigation to the sentence.

With the package approved, Moro recommended to then-president Jair Bolsonaro that he veto the provisions of the guarantee judge, claiming that the Judiciary was not yet prepared to reorganize itself and divide tasks, especially since in much of the interior of the country there is only one judge. to judge cases, not only criminal cases, but also civil cases. The risk was of delaying or disturbing the progress of investigations and actions, increasing the prescription of cases and impunity – critics consider that this risk still persists.

Bolsonaro, however, sanctioned the guarantees judge and the then president of the STF, Dias Toffoli, created a group in the National Council of Justice (CNJ) to study its adoption. Associations of the judiciary and the MP called on the Court to suspend the immediate application of the law, which was met in early 2020 by the rapporteur, Luiz Fux, in an injunction.

Since then, he and other ministers have been pressured to vote on the actions, to decide whether or not the model is constitutional. Fux is concerned about a rapid implementation of the model without restructuring the Judiciary, especially to deal with criminality in general.

Gilmar Mendes, defender of the model and today one of the biggest critics of Lava Jato, considers it important to divide the investigation and the process, but recognizes the possibility of a gradual implementation, according to the conditions of each state.

At trial, such a solution tends to win the majority of votes in the STF. There are, however, several specific issues to be defined. Find out what they are below:

Total impediment of the investigating judge to judge the case

According to the approved rule, the guarantee judge, who acts in the investigation, cannot judge the case under any circumstances. For part of the judiciary, this is a problem, because in a good part of the country, especially in the interior of the states, many cities have only one judge.

This means that, if he takes over the investigation, he will be obligatorily removed from the trial. There is a risk of delay and even prescription, since a judge from another city will have to be summoned to the stage of the process, and not all state courts have the structure and resources to organize this displacement in order to avoid the paralysis of the case.

The Association of Brazilian Magistrates (AMB) and the Association of Federal Judges (Ajufe), which contested in the STF the way in which the guarantee judge was provided for in the law, defend a different model, already adopted in São Paulo.

Since 1984, the State Department of Police Investigations (Dipo) has existed in the state, which concentrates investigations in the hands of the magistrate judge and ten other auxiliary judges, and who supervises investigations in the busiest cities: in addition to the capital, Araçatuba, Bauru , Campinas, Presidente Prudente, Ribeirão Preto, Santos, São José dos Campos and Sorocaba. In practice, they act as guarantee judges.

When the investigation ends and the Public Prosecutor’s Office offers a complaint, the case is sent to the criminal court of the place where the crime occurred. The judge, who did not act in the investigation, decides whether to accept or reject the complaint. If so, he conducts the process and then judges the action.

One of the differences is that the model is not valid for the entire state. The TJ-SP itself is interested in expanding to the 316 counties, but says that this could take time and needs more personnel, structure and resources for this. The 2019 law is criticized by associations because it does not leave much room for states to implement it gradually, and determines that the change takes place completely.

Judge who judges will not be able to access the entire inquiry

Another major problem pointed out by associations of judges is a rule that prevents the judge of the case from accessing the entire investigation. “The records that make up the matters within the competence of the guarantees judge will be safeguarded in the secretariat of that court, available to the Public Prosecutor’s Office and the defense, and will not be attached to the case records sent to the investigating and judgment judge, with the exception of documents relating to the unrepeatable evidence, measures for obtaining evidence or anticipating evidence, which must be sent for separate storage”, says the rule approved in Congress.

The AMB says that, with this, the judge who will judge the case will be harmed and will not be able to know the action in depth. “No one, in good conscience, can accept that the judge of the criminal action is forbidden to compare the evidence collected in the investigation phase with the evidence carried out in the criminal action. This examination can allow both the acquittal and the conviction of a defendant”, says the entity.

Another problem pointed out by the AMB is the power of the trial judge to annul the acts of the investigating judge. This, according to the entity, would create “an internal instance within the 1st degree”.

Judge can produce evidence only for the defense

The National Association of Members of the Public Prosecution Service (Conamp) contests a rule according to which the guarantees judge could not act in “replacement of the probative role of the prosecution body”. In practice, it means that the judge cannot take the initiative to produce evidence in place of the Public Ministry, the body he accuses. But, for the entity, this would not be prohibited for the defense, thus favoring only the investigated.

“Any attempt to build a figure of a judge-defender, as already stated by some in the doctrine, is as deleterious to the accusatory system as that of the accusing judge, as it removes its impartiality”, says Conamp.

24-hour custody hearings or release

Another rule opposed by the association of prosecutors is the one that provides for automatic release if the custody hearing is not held within 24 hours. Implemented in 2015, the custody hearing obliges the judge to hear a person arrested in flagrante delicto to assess whether the measure was not abusive and whether it is really necessary to preserve public safety. Mandatorily, the Public Prosecutor and a lawyer or defender of the prisoner must be present.

The problem, for Conamp, is that it is not always possible to hold the hearing within 24 hours, because there are often no judges, prosecutors and defenders on standby in all cities, “not by the will of the members of the Public Ministry or the magistrates, but by the existing reality in Brazil”.

“It is common in the states, within the scope of the State Justice, when carrying out the judicial duty, the division of the territory into administrative regions, which may cover more than one district, so that it may happen that the judge designated for the duty be crowded in city A, the prosecutor in city B, and the public defender in city C, which makes it impossible to carry out the act within 24 (twenty-four) hours, given that the distance between the districts, it is, most of the time, considerable (more than one hundred kilometers)”, he argues.

Conamp says that, when judging the law, the STF must establish that, in situations where the hearing is not possible within the deadline, there is no automatic release.

What the OAB and the defenders of the guarantee judge say

The Brazilian Bar Association (OAB), the Public Defender’s Offices and entities linked to the right of defense argue that the most important thing is to divide the tasks of investigating and judging. Any obstacles must be overcome and costs managed to implement the model in the name of impartiality.

“The allegations that there is no viability for the implementation of the guarantee do not deserve to be accepted. In addition to being an argument that does not hold up when the principled importance of the topic is verified, the measure in theory would not have a significant financial impact since the volume of work would not be altered, but only the division of competences”, says the OAB.

The entity says that the model has existed since 1987 in Portugal, since 1988 in Italy and since 2000 in Chile. It recognizes that adaptations will be necessary, but that it is up to all powers to create the conditions for this.

“The objective impartiality of the judge and the very appearance of impartiality remain evidently compromised when the magistrate acts in the investigative phase, since he inevitably makes prejudgments or preconceptions about the fact that is the object of the judgment, as well as forms an idea about culpability of the accused”, argues the entity.