1970-01-01 02:00:00
On the agenda this Wednesday (9), the Federal Supreme Court (STF) resumes the judgment of actions that deal with the implementation of the guarantees judge in the Brazilian criminal procedure. The process is the first case of great repercussion to receive a vote from Minister Cristiano Zanin, the most recent judge of the supreme court, sworn in last week.
The creation of the guarantees judge was established in the laws of the so-called “anti-crime package” presented by Sergio Moro (União-PR) in 2019, when he was Minister of Justice. The original project did not deal with the subject, but the new category of magistrate was implemented after a change proposed by former deputy Marcelo Freixo, opponent of Moro. The proposal is one of the main guidelines of the criminal law guaranteeing current, opposed to the punitivism defended by the former minister.
The guarantees judge would serve as a second person in charge of criminal proceedings, being responsible for preliminary decisions, adopted throughout the investigative process. The judge, therefore, is responsible only for the sentence, being removed from the investigative procedure. Zanin is one of the defenders of this division, claiming that the magistrate’s participation throughout the investigation may compromise his decisions at the end of the process.
The law that creates the guarantee judge was passed in 2020, but was questioned in the STF by the Association of Brazilian Magistrates (AMB). According to the institution, the distinction between a judge for the investigative process and another for the legal process violates the indivisibility of the judgment, violating the principle of the natural judge, provided for in the Constitution. It also lacks criteria to define how the implementation should be done.
The case was reported by Luiz Fux, who in June defended the unconstitutionality of the guarantees judge. He understands that, in practice, the law creates a “generalized presumption that any criminal judge in the country has typical behavioral tendencies of favoring the prosecution”, with no room for this in the Constitution, but proper procedural mechanisms for alleging the judge’s incompetence .
The minister also criticized the administrative effects of the law, which obliges each district to establish specific judicial branches for guarantee judges and investigating judges. In his understanding, this violates the autonomy of the courts, in addition to being able to result in the interruption of all ongoing criminal actions in Brazil.
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