Understand the judge of guarantees, subject of judgment in the STF – 05/21/2023 – Branch

About to be judged by the STF (Supreme Federal Court), the institution of the judge of guarantees divides the conduct of criminal proceedings between two magistrates. One of them is responsible for the investigation phase, while the other is in charge of the trial.

The objective, say defenders of the proposal, is to give more impartiality to the judgments. Critics say that the measure can result in accumulation of work for magistrates and make it difficult to elucidate complex cases, which require specialization from the magistrate.

The guarantee judge 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 of this was suspended in January 2020 by Minister Luiz Fux, who is the rapporteur for the cases. At the time, he also suspended the installation of the model.

Below, understand what is known about the implementation of the institute.

What does the guarantee judge do? It is the magistrate who is responsible for the investigation phase. He will be responsible for enacting and extending preventive detention, deciding on breach of secrecy, search and seizure and telephone interception and issues related to obtaining evidence. It is also the guarantees judge who decides whether to accept the complaint (drawn up by the Public Ministry) or the criminal complaint (in the case of private criminal actions).

Upon receipt of the denouncement or complaint, the case passes to another magistrate, the investigating judge. He will be responsible for the next steps (hearing witnesses, for example) and for the sentence.

When would this institute come into force? Before being suspended by the STF, the law provided that the guarantees judge would come into effect on January 23, 2020.

Would it be necessary to hire new judges? Defenders of the measure claim that it is possible to redistribute jobs in the larger districts, without the need for new hires. This is what defends Toffoli, for example.

Critics of the institute claim that redistribution would not be so simple and that the measure should generate an overload for magistrates. Thus, it would be necessary to hire judges, which demands new costs.

And what would happen in districts with only one magistrate? According to a CNJ survey, at least one out of every five courts has only one judge. In these cases, one possibility would be the redistribution of work among judges from neighboring counties.

What do supporters of the measure say? They claim that the guarantees judge helps to ensure impartiality in the conduct of the process and protects the individual’s guarantees and the right to defense.

And those who are against? One of the main arguments is the accumulation of work and the possible need for new hires.

What happens to the processes that are already in progress? Toffoli’s decision, until now suspended, provided that, in criminal actions already initiated at the time the institute was implemented, that is, those that had already received the complaint, the responsible judge would continue to lead the case, even if he had acted in the investigation phase.

In the case of ongoing investigations at the time the institute is effective, the judge who will take over the case after receiving the complaint will be different from the one who supervised the investigation.

Will there be a guarantees judge in all criminal cases? Toffoli’s decision, today suspended, provided that the institute would not be applied in cases of the Jury Court (which judges intentional crimes against life, such as homicide) nor in those related to the Maria da Penha Law. The justification is that these actions follow their own rites.

There would also be no judge of guarantees in criminal actions of the Electoral Justice and in original processes (which begin) in the TJs (State Courts of Justice), TRFs (Federal Regional Courts), STJ (Superior Court of Justice) and STF.

Proceedings originating in courts are those involving defendants with special jurisdiction due to prerogative of function, such as governors in the STJ and deputies in the STF. By Toffoli’s decision, the judge of guarantees would only work in cases that begin in the first instance.

Are there models similar to that of the guarantee judge already in operation in the country’s courts? The best known is the Dipo (Department of Police Inquiries), which has operated in the city of São Paulo since 1984. There are 13 judges, who take care of around 85,000 inquiries. In the department, judges are only responsible for the investigation and evidence gathering stage. When the Public Ministry presents the complaint, the case is transferred to the criminal courts.

Are there differences between the figure of guarantee judges and what Dipo already does? It is not the Dipo magistrates who decide whether to accept the complaint — that is the role of the judges of the criminal courts. This task, however, will fall to the judge of guarantees.

Were there any plans to expand the Dipo model to the rest of SP? Yes. State law enacted at the end of 2018 provides for the creation of other Dipo in the ten judicial administrative regions of São Paulo. The legislation does not set a deadline for the measure to be effective.