STF plans to judge the creation of a guarantee judge after 3 years – 05/21/2023 – Power

More than three years after being suspended by minister Luiz Fux, the installation of the guarantees judge is expected to be brought to the STF (Federal Supreme Court) trial starting this week, with a favorable outlook for the model.

The guarantees judge determines the division of responsibility for criminal proceedings between two judges: one authorizes investigative steps and the other judges the defendant.

Rapporteur of the case, Fux released the actions that deal with the subject for judgment after the Supreme Court approved a change in its internal rules, which submits decisions such as the suspension of the model to the analysis of the other ministers.

Before, the minister’s intention was for Congress to decide on the measure by approving a New Code of Criminal Procedure, without the need for a judgment by the STF, but this has not yet happened.

The president of the court, minister Rosa Weber, scheduled the analysis of the actions for this Wednesday (24), but it is likely that the start of the trial will be delayed — the trial of former president Fernando Collor is still pending completion and may be that, before that, the court resumes the discussion on the decriminalization of the possession of drugs for personal consumption.

The expectation of the ministers’ interlocutors is that Fux will present a vote against the guarantee judge model approved by Congress in 2019 and which is resisted by the magistrates’ class entities.

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 of time that allows the courts to prepare for the change.

This would meet the demands of the courts.

Judge Ricardo Anafe, president of the São Paulo Court of Justice, the largest in Brazil, informed the Sheet that the court is not prepared to implement the guarantees judge and that it would take a year for the model to be adopted.

He did not comment on the lawsuit being processed by the STF.

The guarantee judge was approved 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 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.

Sought, the AMB (Association of Brazilian Magistrates), author of one of the actions that question the guarantees judge, says that the project can bring negative impacts to 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 AMB 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.

In memorials presented in the actions with Ajufe (Association of Federal Judges of Brazil), the AMB says that it is against the model created by federal law, and not against the existence of the guarantee judge. “Unconstitutionality is the form adopted by the legislator that renders ineffective the various models already instituted (such as the Dipo in SP)”, says the memorial.

The Dipo (Department of Police Inquiries), a sector that operates in the capital of São Paulo, works in a similar way to the institute of the guarantee judge. In it, 13 judges handle approximately 85,000 inquiries.

The department was created in 1984 and takes care of the whole part of the investigation. After offering the complaint, the cases are sent to the criminal courts, which accept or not.

According to the associations, the São Paulo model is incompatible with the proposal approved by Congress, and would be at risk.

The OAB, which is one of the parties interested in the process, disagrees with the entities’ arguments and has advocated that the guarantees judge 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 tells 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.

For him, there would be accumulation of work for magistrates. An opinion from the Ministry of Justice during his term also stated that the institute “difficults or makes it impossible to elucidate complex cases, such as crimes of corruption, embezzlement, money laundering and crimes against the financial system”.