Zanin votes for the obligation of the judge of guarantees in the STF

Minister Cristiano Zanin voted this Thursday (10) for the mandatory implementation, throughout the country, of the guarantee judge, a model that radically changes the way crimes are investigated and judged in the Judiciary. This was Zanin’s first participation in trials in the plenary of the Federal Supreme Court (STF).

In this model, the investigation phase of a crime – the task of the police and the Public Prosecutor’s Office – will be supervised in a very rigorous way by a magistrate (the guarantee judge, who will be responsible for overseeing the prerogatives of the investigated person) and the investigation phase of the process and final judgment will necessarily be in charge of another judge.

Currently, these two phases are the responsibility of only one judge. The purpose of dividing the tasks into two judges is to prevent the judge who followed the entire investigation from giving the final sentence. The premise is that, by having authorized measures against the investigated person (such as arrest, search and seizure, breaches of secrecy, blocking of assets, etc.), he would become more susceptible to finding him guilty beforehand, before the end of the process, so as not to contradict your initial suspicions. The purpose, therefore, is to ensure greater impartiality in the process and judgment of the defendant.

The guarantee judge was inserted by deputies in 2019 in the anti-crime package, proposed by the then Minister of Justice, Sergio Moro, to bring more effectiveness to criminal investigations, along the lines of Operation Lava Jato. In the Legislature, however, the bill was significantly altered, to include rules in the opposite direction, to expand the right of defense of those investigated. At the time, a political movement in reaction to Lava Jato began, including in the Legislature. The guarantee judge was the main innovation in this regard.

The model is defended by criminal lawyers, including Cristiano Zanin, when he was a lawyer for President Luiz Inácio Lula da Silva (PT). If applied, several provisions of the guarantees judge would prohibit or hinder procedures adopted against the PT and other politicians in the investigations of the petrolão. Moro, at the time, defended the veto of the then president, Jair Bolsonaro, but he sanctioned the proposal as approved by Congress.

Associations of judges and prosecutors then called the STF to suspend the law and declare it unconstitutional. The main opposing arguments were that the adoption of the model would disturb and delay the progress of the processes, leading many to the statute of limitations; that in most of the country, mainly in the interior, there would not be enough judges and structure to divide each criminal case between two magistrates; and that the change should come from a proposal by the Judiciary, not by the Legislature, since it would also change the organization of the courts.

At the time, Dias Toffoli chaired the STF and determined that the National Council of Justice (CNJ) study the implementation. Minister Luiz Fux was drawn as rapporteur for the actions. With a career and strong connections in the Judiciary, he responded to the appeals of associations in the segment and suspended the validity of the law.

votes at trial

Only this year it began to be judged and Fux voted, in June, for optional implementation. That is: the law would only authorize the creation of the guarantees judge, but would not oblige, so that each state Court of Justice could adopt the model gradually according to its capacity, without a judge who supervised the investigation being necessarily prevented from giving the sentence end, as proposed.

This Wednesday, the trial was resumed with the vote of Dias Toffoli, who defended the mandatory adoption, in a maximum of two years. This Thursday, he was followed by Zanin, who, however, defended an even shorter deadline, one year for implementation across the country.

He also defended the validity of a section of the law that determines that any and all investigative procedures initiated by the Public Ministry must be submitted to the scrutiny of the Judiciary. Currently, many investigations are only in the MP, without judicial supervision. With the change, the guarantee judge will have more power to control the investigation to ensure the right of defense of those being investigated.

In addition, for Zanin, the guarantee judge will no longer be able to determine, on his own initiative, the production of evidence, which must always be requested by the police or MP.

In his first face-to-face trial in plenary, the new minister said he was convinced of the need to implement the guarantees judge. “The existence of the guarantee judge could effectively change the course of Brazilian justice, because by guaranteeing society a greater probability of impartial and independent judgments, the penal system is potentially fairer,” he said.

Afterwards, he said that the measure could contribute to reducing the number of arrests of black and poor people in Brazil. “It will be able to help in the fight against social and racial injustices and prejudices that unfortunately are present in the justice system. There are about 650,000 people in the country. And this very high index puts us in third place in the world ranking of prison population. The fact is that incarceration mostly affects young people up to 29 years of age, 55%; blacks, 64%; with a low level of education, since 75% did not even access high school,” said the minister.

He added that drug law enforcement convicts more blacks than whites for trafficking. In the coming weeks, the STF will also decide whether to decriminalize the possession of drugs for personal consumption. Zanin will also be able to vote in this process.