Figure that separates the judge from the investigation of the judge who judges was validated by the Supreme Court in 2023, but is not valid for actions originating in the Court itself
The defense of the former president . “Contours” of the judge of guarantees in the Brazilian criminal proceedings deserves to be “Re -appreciated”.
According to lawyer Celso Vilardi, this revocation should be done especially when the subject is the actions originating from the Supreme Court, since there is an exception as to the need for “Double degree of jurisdiction” for the analysis of these actions. Here (PDF – 7.9 MB).
In practice, the rule determines that each criminal proceedings be accompanied by 2 judges: while the judge of guarantees accompanies the inquiry phase, that is, investigation, the judge of instruction and judgment acts after the complaint of the MP (Public Prosecution Service), when the investigation becomes criminal action.
This double judgment, created by the Anti -Crime Pack (Law 13964/2019), however, does not contemplate the processes of jurisdiction originating from the Supreme Court and the STJ (Superior Court of Justice), which are governed by Law 8.038/1990, which establishes standards for STF and STJ processes.
If the judge of guarantees were to the Supreme, Alexandre de Moraes, who accompanied investigations into the alleged attempted coup, could not judge the case.
In his demonstration, Vilardi calls for the impediment of Alexandre de Moraes to judge the case. The lawyer also points out that the trial of the anticrimin package fixed the “Constitutional Origin” of the judgment of guarantees, as well as its importance for criminal proceedings.
It highlights the vote of Minister Dias Toffoli who says that the measure strengthens the accusatory model, which is foreseen by the Constitution.
“The institution of the ‘judge of guarantees’ by Law No. 13.964/19 has reinforced the criminal procedure model advocated by the 1988 Constitution. Such a measure is an unprecedented change in our criminal proceedings, which has gradually walked to strengthen the accusatory model.”said Toffoli.
According to Bolsonaro’s lawyer, in defending his argument, the importance of the fundamental precepts that guide procedural reforms, “In the recent past”it was already sufficient for the jurisprudence to change the rite provided for in Law 8.038/90.
Minister Luiz Fux (rapporteur) had the implementation of the judge of guarantees indefinitely in January 2020. in a trial in plenary, Due to the unconstitutionality of the obligation of the device because it understands that the implementation of the model will bring spending to the courts. However, the STF The figure of the judge of guarantees and determined the double jurisdiction in the courts in August 2023.
Custom
The proposal of the Judge of Guarantees was approved by the National Congress in December 2019 and sanctioned by the former president (PL), through the anti-criminal package, sent by the former minister and today Senator (União Brasil-PR).
According to the law, “The judge of guarantees will be designated according to the rules of judicial organization of the Union, the States and the Federal District, observing objective criteria to be periodically disclosed by the respective Court”. The measure prevents the process from being linked to a single judge, leaving the judiciary more independent.
