Author: Manassés Lopes

Contemporary criminal procedure is undergoing a transformation that reflects not only the need to modernize legal structures, but also the challenge of overcoming entrenched practices that often compromise the impartiality and efficiency of justice. 

In this context, the figure of the judge of guarantees, introduced by Law 13.964/2019, also known as the "Anti-Crime Package," emerges as an innovative institution in our legal system. 

In general terms, the role of the judge of guarantees is to promote a more balanced and fair system, aligned with the principles of the Democratic Rule of Law.

This new institution, however, is proving difficult to implement.

In this text, we will explore the contours of this institution, its practical implications, and the debates surrounding its implementation.

What is the structure of the judge of guarantees?

As expressly provided for in Article 3-B of the Code of Criminal Procedure, the judge of guarantees is responsible for supervising the investigative phase of criminal proceedings. 

According to the Code of Criminal Procedure, the judge of guarantees is responsible for controlling the legality of the criminal investigation and for safeguarding individual rights whose exercise has been reserved for prior authorization by the Judiciary.

As can be seen from the legislation, the role of the judge of guarantees concerns controlling the legality of the investigation and safeguarding the individual rights of the person under investigation. 

Among the powers provided for by law, the judge of guarantees is authorized to apply precautionary measures such as preventive detentions, wiretaps, and searches and seizures, in addition to supervising investigative acts carried out by the police authority. 

The key point of this institution is that the judge of guarantees will have no involvement in the trial of the case. 

In other words, the merits of the case will be analyzed by another magistrate, also called the trial judge, who will not have direct contact with the evidence gathered in the investigation. 

This separation aims to avoid what is known as "cognitive dissonance," a concept introduced to criminal law by social psychology. 

According to the theory of "cognitive dissonance," a judge acting in the investigative phase tends to confirm hypotheses already formulated, which compromises their impartiality when deciding on the merits of the case.

Ultimately, the proposal is not only structural but also philosophical, reflecting a paradigm shift aimed at moving the Brazilian criminal process away from inquisitorial practices and closer to the adversarial model, where the parties – prosecution and defense – take on a leading role in the production of evidence, while the judge acts as an impartial third party.

Want to understand more? Continue reading the article: Judge of Guarantees: an analysis of their role in Law 13.964

What are the challenges in implementing the judge of guarantees?

The introduction of the judge of guarantees in Brazil brought with it a series of challenges, especially related to its operationalization. 

Firstly, the structural issue: many judicial districts in Brazil face a deficit of resources, both human and financial, so that implementing specialized courts or exclusive judges to act as guarantee judges requires a considerable effort of reorganization and investment on the part of state and federal courts.

Furthermore, there is the complexity of cases involving multiple judicial districts. How can the role of a judge of guarantees be ensured when investigations unfold across different jurisdictions? 

The lack of clear regulations regarding these scenarios creates uncertainties that can lead to the judicialization of procedural issues, further prolonging the processes.

Another point of contention is the exclusion of the judge from the guarantees in some types of proceedings, such as those under the original jurisdiction of the higher courts, cases of domestic and family violence, minor offenses, and jury trials. 

This limitation, established by the Supreme Federal Court, has generated criticism because it compromises the uniformity of the criminal procedure system. According to legal scholars, the exclusion could weaken the institution itself, creating a hybrid system that perpetuates inequalities in access to justice.

What are the benefits of implementing the judge of guarantees?

Despite the challenges, the benefits of the judge of guarantees cannot be ignored. 

In fact, the figure of the judge of guarantees in the Brazilian criminal process represents a significant step forward for impartiality in resolving the dispute. 

This is because, by separating the functions of investigation and judgment, the institution strengthens the principle of the natural judge and prevents the magistrate presiding over the investigative phase from being influenced by preconceptions when deciding on the merits of the case.

Furthermore, this separation not only reinforces public confidence in the judiciary, but also protects the fundamental rights of those under investigation. 

If we stop to think about it, in a system that historically favors a punitive approach, the figure of the judge of guarantees acts as a necessary counterweight to balance the scales between prosecution and defense.

Furthermore, the presence of the judge of guarantees can encourage better investigative practices. This is because police authorities and members of the Public Prosecutor's Office will have to justify their requests in a more solid way, knowing that they will be subject to more rigorous scrutiny, so that we can have a more technical investigation and less one based on conjecture or bias.

Will there be impacts on the prison system as well?

There is no doubt that the implementation of the judge of guarantees will have a profound impact on the Brazilian prison system, which, as we know, faces an alarming situation of overcrowding. 

The figure of the judge of guarantees has the potential to act directly in the review of pretrial detentions, which, at the end of the day, is the biggest cause of prison overcrowding. 

The institute aims to ensure that imprisonment, as a precautionary measure, is used only when strictly necessary and with adequate justification.

This premise is already a theoretical construct that becomes unfeasible in practice. This is because, even when faced with the possibility of applying alternatives to imprisonment, such as electronic monitoring or bail, many judges still choose to maintain pretrial detention. 

This phenomenon often stems from a culture deeply rooted in the judicial system, which views imprisonment as the most effective measure to ensure public order and the progress of criminal proceedings. 

In this way, the judge of guarantees can play a crucial role in changing this mentality, by reinforcing the use of alternative measures when these prove sufficient to guarantee the continuity of the investigation or the process.

However, for this change to be effective, continuous training of judges and a joint effort to implement these alternatives efficiently are necessary. 

The judge of guarantees is not a "savior of the nation" in the prison system, but their actions can be an important step in transforming how the Brazilian penal system deals with pretrial detention and, consequently, with prison overcrowding.

Further deepen your understanding with the article: Anti-crime package: what changes with the new law?

How can you stand out professionally with so many changes?

In this context of change, specialization becomes indispensable. 

Understanding the nuances of the judge of guarantees and their interaction with the accusatory system requires constant study and updating. 

It is not enough to know the letter of the law; it is necessary to understand the principles that underpin the institution and how they apply in practice.

This is precisely where programs like the postgraduate course in Criminal Law and Criminal Procedure at IDP stand out.

With subjects covering topics such as criminal investigation, defense strategies, appeals practices, and the judge of guarantees, the course offers comprehensive and practical training. 

Postgraduate studies are not just an opportunity for professional development, but a strategic investment for those who wish to work at the forefront of Criminal Law. 

In an academic environment that values ​​critical debate and the exchange of experiences, students have the chance to deepen their knowledge and develop skills that will make a difference in their careers.

Rethink Criminal Law and Procedure here at IDP Online!

The judge of guarantees is not just a new legal institution; it is an invitation to reflect on the role of Criminal Law in our society. 

By promoting impartiality and respect for fundamental rights, he challenges us to rethink practices that have long been accepted as normal.

However, its implementation also reminds us that structural changes require collective effort and a commitment to justice. 

It is a time of transition, where the pursuit of a more balanced and democratic system must prevail over individual or corporate interests.

If you are a legal professional who wants not only to understand but also to be part of this transformation, the path is clear. 

Invest in your education, deepen your knowledge, and be prepared for the challenges and opportunities that arise with this new era of the Brazilian criminal justice system.

References

Peluso, Antonio C. Opinions on Criminal Law. Available at: My Library, Almedina Group, 2021.

Mendes, Gilmar, F. and Matheus Pimenta de Freitas. Constitution, Criminal Law and New Technologies. Available at: Minha Biblioteca, Grupo Almedina, 2024.

Estefam, André. Contemporary Criminal Law – 1st Edition 2022. Available at: My Library, GEN Group, 2022.

Mendes, Gilmar, F. et al. CONTEMPORARY CRIMINAL LAW , IDP SERIES, 1st EDITION. Available at: My Library, GEN Group, 2011.