We have already discussed the anti-crime package and its changes to criminal law here on the IDP Online Blog . In this article, we will address one of its legislative changes: the Judge of Guarantees. Therefore, we will discuss several important points for a better understanding of this institution.

The American Convention on Human Rights, to which Brazil is a signatory, in its Article 8, stipulates that every individual has the right to be heard by a "competent, independent and impartial judge or tribunal, established beforehand by law".

In this sense, as the name itself suggests, the Judge of Guarantees is an institution whose primary role is to guarantee due process of law, ensuring important points such as the impartiality of the judge. We will delve deeper into this topic below:

What is the Judge of Guarantees and how did it come about?
The anti-crime package (Law 13.964) was signed into law by then-President Jair Bolsonaro, adding the function of the Judge of Guarantees. The original text of the anti-crime package did not include this institution, which was added later.

Bill No. 4981 of 2019 aimed to establish the figure of the "judge of guarantees" in Brazilian criminal procedure, responsible for controlling the legality of criminal investigations and safeguarding personal inviolabilities. This preserves the judge's impartiality and distance in the process.

The aforementioned project was approved by vote in the Chamber of Deputies and subsequently amended the existing legislation. In this regard, Article 3-A of the Code of Criminal Procedure provides: 

Article 3-A. The criminal process shall have an accusatory structure, prohibiting the judge from taking initiative in the investigation phase and from substituting the evidentiary role of the prosecution.

The judge of guarantees is responsible for overseeing the legality of criminal investigations and safeguarding the individual rights of those under investigation, the exercise of which has been reserved for prior authorization by the Judiciary. 

During the investigation and indictment phase, the Judge of Guarantees will act, while during the trial phase, the Trial Judge will not receive, nor be influenced by, the evidence produced in the previous phase, since only unrepeatable evidence, measures to obtain and anticipate evidence will be forwarded.

The accusatory constitutional framework implies that there is no impartiality of the judge, nor a dialectical or adversarial structure in an inquisitorial system, where functions were concentrated in the hands of a single magistrate.

This principle was already being advocated by prominent figures in criminal and criminal procedure law, such as Aury Lopes Junior, even before the advent of the anti-crime package.

What are the responsibilities of the Judge of Guarantees?

The jurisdiction of the Judge of Guarantees covers all criminal offenses, except those of lesser offensive potential, and ceases upon receipt of the indictment or complaint. 

In addition to ensuring due process, the Judge of Guarantees is responsible for everything from receiving immediate notification of the arrest (Article 5, LXII of the Federal Constitution) to deciding on the approval of non-prosecution agreements or plea bargains, when formalized during the investigation.

In this sense, it is the responsibility of the Judge of Guarantees to ensure that the prisoner's rights are respected, and he/she may order that the prisoner be brought before him/her at any time, including to check for any illegality.

Furthermore, it is also necessary to be informed about the initiation of any criminal investigation and to decide on the request for provisional detention or other precautionary measures.

Therefore, it is also up to the Judge to decide on certain important requirements for the investigation phase, such as:

Article 3-B, XI of the Code of Criminal Procedure: 

a) interception of telephone calls, of the flow of communications in computer and telematics systems or other forms of communication;

b) lifting of tax, banking, data and telephone secrecy; 

c) search and seizure of a dwelling;   

d) access to confidential information;  

(e) other means of obtaining evidence that restrict the fundamental rights of the person under investigation;

Prior to the anti-crime package, the same judge who acted in the pre-trial phase would also act in the trial phase, receiving the accusation made by the Public Prosecutor's Office, hearing the listed witnesses, and proceeding with the procedural instruction, convicting or acquitting the defendant. 

Currently, those arrested in the act or pursuant to a provisional arrest warrant will be brought before the judge of guarantees within 24 hours, at which time a hearing will be held with the presence of the Public Prosecutor and the Public Defender or a retained lawyer, with the use of videoconferencing being prohibited.

If the suspect is in custody, the Judge of Guarantees may, upon representation by the police authority and after hearing the Public Prosecutor, extend the duration of the investigation once, for up to 15 (fifteen) days, after which, if the investigation is still not concluded, the detention shall be immediately released.

How do other countries view the institution of the Judge of Guarantees?

The institution of the Judge of Guarantees is adopted by several countries, both more developed and less developed, such as Germany, Italy, France, Chile, and Colombia. They have different names, such as in France, where it is known as the Judge of Liberties and Detention.

Given this, several countries have adopted the model of the Judge of Guarantees, so much so that, in Latin America, only Cuba and Brazil had not adopted the Judge of Guarantees model.

Although it is an institution adopted by several countries, some have structural problems, as is the case of Argentina, which has adopted the Judge of Guarantees since 1991, but in some places it has not yet been put into practice.

Among the countries that have adopted this model in the accusatory structure, Portugal, Italy, and Chile stand out, either for their similarity to the model proposed in Brazil, or for the diversity in the way the matter is handled.

The main focus of this article is Brazil, and therefore we will not delve into internationally adopted models, but it is worthwhile to research and understand more about the nuances of the institute being discussed.

Debates surrounding the Judge of Guarantees

The new provision in criminal procedure law notably generated some initial bewilderment, prompting diverse opinions, some against and others in favor. The judge of guarantees gained greater visibility during the Lava Jato operation, conducted by then-judge Sérgio Moro. 

The arguments for and against are diverse. There are arguments in favor that defend the creation of this institution in order to avoid the concentration of power in a single judge, since in Brazil some judges seek procedural protagonism. Furthermore, there is the issue of impartiality in final decisions, since two judges will analyze the same case.

Conversely, there are arguments based on financial reasons, since the institution would bring great expense to the judicial system. In this sense, unlike other countries, Brazil has a large number of Habeas Corpus cases, for example, and in small districts with only one judge, proper action would be very difficult. 

The differences in regional realities between states and even cities within the same federative unit make it difficult to implement the figure of the Judge of Guarantees.

Judges from regional courts and state courts emphasized that adopting the measure implies costs, with increased personnel, physical facilities, and technology use.

It is certain that the institute strengthens procedural guarantees and the impartiality of the magistrate, in the face of challenges generated by new forms of investigation and means of proof developed by technological advancements.

In this way, they bring about an increase in the quality of justice and guarantee the legitimacy of the State in exercising its duty to punish.

What is the impact of the Judge of Guarantees on the lawyer's work?

For those involved in the process, it has always been a widely accepted issue that the criminal process has several procedural shortcomings. In this sense, the Judge of Guarantees was created to ensure various rights, including rights that the defense needs to know in order to protect them.

Thus, from the perspective of the defense attorney, the Judge of Guarantees is seen as an improvement to the criminal procedural process. The legal defense must demand compliance with due process, advocating for the rights of their client and ensuring the impartiality of the judge during the trial.

The requests for your client are diverse, depending on the case, ranging from filing a request for release from prison to reporting a specific illegality suffered by your client. Therefore, it is very important to understand this legal mechanism in order to ensure a more rights-based defense. 

References

Federal Senate, Bill No. 4981 of 2019.

American Convention on Human Rights. Signed at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, on November 22, 1969.

Lopes, Aury Júnior and Ritter, Ruiz. The Indispensability of the Judge of Guarantees for an Impartial Criminal Jurisdiction: Reflections Based on the Theory of Cognitive Dissonance. 2017.

Lima, Walter Alves. The figure of the judge of guarantees in the international and national context. Brazil, 2022. 

Pink, Alexandre Morais; Junior, Aury Lopes. Understanding the impact of the Judge of Guarantees in Criminal Proceedings. CONJUR, 2019.