Warranties judge can lead to prescriptions, critics point out

The Federal Supreme Court (STF) is due to judge this Wednesday (14) the guarantees judge, who provides that, in the course of a criminal action, a magistrate acts in the investigation and another in the trial process. The rule – approved in 2019 by Congress, but suspended by the Court since then – is criticized by associations of judges, prosecutors and courts, who cite a major structural and financial impact for the Courts of Justice, in addition to the risk of generating more slowness and even even prescriptions, especially in inner cities where there is only one judge acting.

In these cases, that single judge who takes over the investigation is 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) point out yet another major problem: the institution of the guarantee judge provides for a rule that prevents the judge of the process from accessing the entire investigation.

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”.