Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 3-A CPP – The pp is accusatory.

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Guarantee Judge

(Included by Law No. 13,964, of 2019)  (Effective)

 Art. 3rd-A. The criminal procedure will have an accusatory structure, the judge’s initiative being prohibited in the investigation phase and the substitution of the evidentiary role of the prosecution body.  (Included by Law No. 13,964, of 2019)  (Effective)

Articles 3-A, 3-B, 3-C, 3-D, 3-E and 3-F suspended sine die by injunction granted in ADIs 6,298, 6,299, 6,300 by Justice Luiz Fux.

Introduction, main conclusions and historical background

Introduction: Below is a study on the judge of guarantees, who, in fact, is a judge of legality. First, the main conclusions on the subject are presented. In general terms, the system of the guarantee judge distributes the procedural burdens better. This division results in a reduction in the judge’s responsibility and an increase in that of the parties, with a consequent reduction in the work of the former. This reduction in responsibility affects the inquisitive conduct of the investigating judge, providing him with greater independence and impartiality to gather evidence and judge. With the creation of the guarantee judge, meaning the legality judge, there is a gain in effectiveness for both the principle of guarantee and public safety, the main foundations of criminal proceedings.

Main conclusions regarding the system: The main conclusions regarding the system of the guarantee judge follow:

1st – The guarantee judge is not an advocate. It is, in fact, a judge of legality, since it authorizes precautionary measures and/or invasive measures, in compliance with the principle of public security (In the title Introducing the judge of guarantees in the subtitle Judge of guarantees or legality? , in comments to article 3 – B).

2nd – The judge is not isolated from the evidence of the inquiry. This proof may be attached by the parties in the final phase of the instruction by means of a substantiated petition, in which the provision of article 402 of the CPP must be demonstrated : attached need that originates from circumstances or facts established in the instruction. In this way, the jurisdiction is not removed from the search for the real truth (see: 1 – subtitle The process does not abdicate the unattainable search for truth in the title Introducing the judge of the guarantees of article 3o-B; – 2 subtitle Important interpretation with regard to caution of the title inquiry Introducing the judge of the guarantees of article 3o-B; 3 – subtitleProposal for an intermediate interpretation of the title Purpose of the documentation of the investigation of article 3o-C; 4 – and title Destination of the research documentation of article 3 – C). 

3rd – Re-examination of the precautionary measure by the investigating judge depends on a prior reasoned statement by the parties (title Non-binding of the decisions of the guarantee judge , sub-title Re-examination of precautionary measures in progress , article 3o-C).

4th – The investigating judge is no longer responsible for the preliminary examination of the just cause, since he is not the one who receives the complaint, which protects him from contamination of the inquisitive evidence (subtitle Receipt of the complaint or complaint , title Jurisdiction and functions of the judge of guarantees , Article 3b).

5th – The judge of guarantees is a complex judicial apparatus for improving the impartiality of the judge (title The search for impartiality in article 3o-B).

6th – There is no increase in costs or work. There is a reduction in work, not only as a result of the specialization of the jurisdiction, but also insofar as it is up to the parties to select the relevant evidence from the investigation with a view to adding it to the process and, possibly, there is a reduction in costs with the necessary adoption of videoconferencing for the holding a custody hearing in some cases (subheading There is no increase in costs or work , heading Analysis of objections to the guarantee judge’s system , article 3o-B).

7th – The rules of the judge of guarantees are rules of competence, a subject that must be the subject of federal law, and therefore, there is no unconstitutionality. (subtitle The rules of the system are of competence and constitutional , title Analysis of the objections to the system of the judge of the guarantees , article 3o-B). As it is a rule of judicial organization, it becomes unconstitutional only the one that provides for the rotation system of judges (title Unconstitutionality of the sole paragraph and alternatives in article 3o-D).

8th – The judge who investigates the case when the law comes into force remains competent, not being impeded (subtitle Immediate application of the law and absence of impediment of the judge , title Impediment of the investigating judge and succession of laws in time, article 3 -D).

9th – The judge of guarantees, when the law is in force, is only impeded in the districts where there are only one or two judges, when then the competence is transferred to the central of judges of guarantees of the region (subtitle Immediate application of the law and Absence of Impediment of the Judge , title Impediment of the Investigating Judge and Succession of Laws in Time , Article 3-D).

10th – It is up to the courts to determine how the functions of the judge of guarantees and instruction will be distributed. One solution that we propose is the creation of central guarantees in the most populous cities to serve districts WHICH have only one or two judges. Another legally viable solution is a central one for each State or Region (subtitle Alternatives for implementation , title Unconstitutionality of the sole paragraph and alternatives, article 3o-D).

Other conclusions:

1st – The reference to Articles 4 and 5 in Article 3-D is inappropriate, but not mistaken (subtitle Inadequate mention of Articles 4 and 5 , heading Inadequate provisions and impediment of the investigating judge, Article 3-D).

2nd – Suspension of the guarantees court for a specified period is a more correct measure than its sine die suspension , as the former allows the courts to plan for the establishment of the system (see subtitle Deadline for submission of the preliminary decision to the plenary of the ST F in title A ADI 6.298 and others, and the suspension of provisions of the anti-crime package , in comments to this article 3o-A.

3rd – It is not necessary for the inquiries to be electronic, since the relationship between the guarantee judge and the police authority concerns exclusively the sending of requests, decisions and documents, which can be carried out by any means of communication, including by e-mail. official emails (authenticity ensured by recording on the server) and even phone calls (in which the authenticity of the communication is recorded in the minutes by the authorities involved) – In the title Analysis of objections to the guarantee judge’s system in the subtitle There is no need for inquiries or that the processes are electronic under the heading Analysis of objections to the guarantee judge’s system , in comments to article 3o-B.

4th – There is no impediment to the adoption of the system also in cases of original jurisdiction of the courts (In the title Still on the jurisdiction of the judge of guarantees in the subtitle The cases of original jurisdiction of the courts and the judge of guarantees of the title Still on the competence of the judge of guarantees in comments to Article 3 – C).

ADI 6,298 and others, and the suspension of anti-crime package provisions

Brief history: The anti-crime package was an initiative of the Ministry of Justice. It was originally a punitive statute. In its paragraph 2 of article 23, it provided that, in the excess of self-defense, the judge could reduce the penalty by half or fail to apply it if the excess resulted from excusable fear, surprise or violent emotion . The criminalist José Roberto Batochio, with intelligent irony, foresaw the police officer’s statement excusing himself during the interrogation: the first shot was out of fear, the second out of surprise, and the third out of violent emotion.. The project, initially written without any consultation, underwent several changes based on contributions from entities representing society. Ministers Alexandre de Morais and Humberto Eustáquio Soares Martins had direct participation. Many suggestions were made by a commission of jurists from the Chamber of Deputies. The insertion of the guarantee judge system was an initiative of the Chamber of Deputies with an amendment presented by the deputy Margarete Coelho. The project became Law n. 13,964/19 on January 23, 2020. The law was the subject of four direct actions of unconstitutionality: ADI No. 6,298, filed by the Association of Brazilian Magistrates (AMB) and the Association of Federal Judges of Brazil (AJUFE); ADI No. 6,299, filed by Podemos and CITADANIA; ADI  No. 6,300,filed by the National Board of the Social Liberal Party (PSL); and ADI 6.305, from the National Association of Members of the Public Ministry. The fact that two associations of judges filed direct actions of unconstitutionality does not mean that the law is not to the taste of judges in general. Other groups of judges publicly manifested themselves in favor of the change, namely, Associação Judges para a Democracia, in addition to seventy magistrates, including judges, judges and former judges of the Court of Justice of Rio Grande do Sul (on 2.01.2020) and forty and three judges and seven federal judges (on 1/6/2020).

Decision of Minister Dias Toffoli: On January 15, 2020, Minister José Antonio Dias Toffoli, in ADI N. 6.300 , granted precautionary measureto: “(i) suspend the effectiveness of arts. 3-D, sole paragraph, and 157, paragraph 5, of the Code of Criminal Procedure, included by Law No. 13,964/19; (ii) suspend the effectiveness of arts. 3º-B, 3º-C, 3º-D, caput, 3º-E and 3º-F of the CPP, inserted by Law nº 13.964/2019, until the effective implementation of the guarantees by the courts, which must occur within the maximum period of 180 (one hundred and eighty) days, counted from the publication of this decision; (iii) interpretation is given in accordance with the rules relating to the judge of guarantees (articles 3-B to 3-F of the CPP), to clarify that they do not apply to the following situations: (a) proceedings of original competence of the courts, the which are governed by Law No. 8038/1990; (b) Jury Court proceedings; (c) cases of domestic and family violence; and (d) criminal proceedings within the competence of the Electoral Justice (…) (iv) the following transition rules are established: (a) with regard to criminal actions that have already been instituted at the time of the effective implementation of the guarantees by the judge by the courts (or when the maximum period of 180 days has expired), the effectiveness of the law will not entail any modification of the competent court. The fact that the judge in the case acted in the investigative phase will not imply his automatic impediment; (b) with regard to investigations that are ongoing at the time of effective implementation of the guarantees judge by the courts (or when the maximum period of 180 days has expired), the investigation judge will become the guarantees judge of the specific case. In this case, once the jurisdiction of the guarantees judge has ceased, upon receipt of the denouncement or complaint,

Decision of Minister Luiz Fux: Minister Luiz Fux, days later, as rapporteur of the ADIs, revoked the above injunction, deciding as follows: “(a) I revoke the monocratic decision contained in ADIs 6,298, 6,299, 6,300 and suspend sine die a effectiveness, ad referendum of the Plenary, (a1) of the implementation of the judge of the guarantees and its consequential ones (Articles 3º-A, 3º-B, 3º-C, 3º-D, 3ª-E, 3º-F, of the Code of Criminal Procedure ); and (a2) the alteration of the sentencing judge who heard evidence declared inadmissible (157, §5, of the Code of Criminal Procedure); (b) I grant the precautionary measure required in the records of ADI 6305, and I suspend the effectiveness sine die , ad referendumof the Plenary, (b1) the alteration of the procedure for archiving the police investigation (28, caput, Code of Criminal Procedure); (b2) Liberalization of imprisonment for failure to hold a custody hearing within 24 hours (Article 310, §4, of the Code of Criminal Procedure). Pursuant to article 10, paragraph 2, of Law no. 9868/95 , the granting of this precautionary measure does not interfere with or suspend the investigations and proceedings in progress on the present date.”

The judge’s suspension of guarantees: Minister Dias Toffoli recognized the constitutionality of the investigating court, unlike Minister Luiz Fux. Dias Toffoli suspended the effectiveness of the law for 180 days. Luiz Fux suspended sine die . He wants to appear that Dias Toffoli’s decision was reasonable. If there is a fixed period for the law to take effect, the courts have time to organize themselves for the new reality. After the deadline, there is nothing to prevent the extension. With no set deadline, courts can be caught short without enough time to prepare.

Deadline for submission of the preliminary decision to the plenary of the STF: According to the general rule, precautionary measures – within the scope of the STF, when the case falls within the competence of the plenary –, can only be granted by the plenary itself, that is, by the plenary. This is what is provided for in article 8, item I, final part of the internal regulations , verbis : It is incumbent upon the Plenary and the Panels, in the matters within their competence: I – to judge the regimental grievance, the instrument appeal, declaratory embargoes and precautionary measures . Said norm is confirmed in article 21, items IV and V of the same normative text, by establishing the submission of precautionary measures to the Plenary and that, only exceptionally, in urgent cases, can they be granted monocratically, but with immediate submission to the collegiate referendum. As follows: Art. 21. The Rapporteur is responsible for: (…) IV – submitting to the Plenary or the Panel, in cases within the respective competence, precautionary measures necessary for the protection of a right susceptible to serious damage of uncertain reparation, or still intended to guarantee the effectiveness of the subsequent decision of the cause; V – to determine, in case of urgency, the measures of the previous item, ad referendum of the Plenary or of the Class ”. Finally, the clarity of article 10 of Law No. 9,868, of November 10, 1999, which deals with the process and judgment of the direct action of unconstitutionality and the declaratory action of constitutionality before the STF, according to which: except in the recess period, the precautionary measure in the direct action will be granted by decision of the absolute majority of the members of the Court . In the specific case, Justice Dias Toffoli, in ADI N. 6.300 , determined, on January 15, 2020, the suspension of the implementation of the investigating judge until the effective implementation of the guarantees by the courts, which should occur within the maximum period of 180 (one hundred and eighty) days, counted from the publication of this decision . A few days later, Minister Luiz Fux, revoking Dias Toffoli’s decision, determined the sine die suspensionof the trial court system. As can be seen from reading the regulatory and legal provisions transcribed above, the injunction required in ADI n. 6,300 could only have been reviewed, with regard to the guarantees judge, if there was urgency.

The express provision of the accusatory system in the CPP. Consequences.

Constitutionality of article 3-A: The accusatory principle already had a Constitutional provision, being inserted in article 129, item I of the CF , according to which it constitutes institutional functions of the Public Ministry to promote, privately, public criminal action . With the introduction of the text of article 3, letter “A”, in the Criminal Procedure Code, which declares that the criminal procedure will have an accusatory structure, the judge’s initiative in the investigation phase and the replacement of the probative role of the prosecution body are prohibited, the adversarial system was strengthened. The said device does not invade matters pertaining to the judicial organization, but specifically addresses the process, that is, the procedural legal relationship. The procedural legal relationship may precede the complaint. Your identity document is the application for jurisdiction. For example, the request for preventive detention made at the investigation stage. It constitutes a true procedural relationship. Antecedent to the main relation, but integrating it. Where there is a request for jurisdiction, it is a procedural relationship in question. Therefore, the diction of article 3-A, by granting an accusatory structure to the process, alludes to the process, never to the judicial organization (see title Procedural nature of precautionary rules in commentary on article 282). The subject of guarantees, since the publication of the new law, has given rise to unusual theses. There is no way, seriously, to sustain its unconstitutionality. In the new law, it is possible to identify only one unconstitutional device, the sole paragraph of article 3, letter “D”, which says that in regions where only one judge works, the courts will create a system of rotation of magistrates . It is unconstitutional because it deals with judicial organization. It has no validity, especially for state courts, insofar as its organization is carried out by state law. In addition to this hypothesis, we are unable to conceive with what kind of logic it can be sustained that the prediction of the accusatory system in the Code of Criminal Procedure violates the constitutional accusatory principle.

Importance of introducing the rule into the CPP: What was once a principle, broad and general, became, with the advent of Article 3, letter “A” and subsequent ones, a federal, specific, cogent and mandatory rule. Apart from the various digressions on the subject, norm (which some call rule) and principle are both essentially the same entity, norm only. In the face of two norms, the name of principle is given to the one that is broader. The principle is the broader norm seen in relation to a less broad, more specific one. General principles are what the name says, principles or norms, when broader in the legal order. Every norm has scope. No exception. There is no norm that cannot be specified by another. Observe the norm orders take the glass with your hand. Is it wide? It seems not. But is. The glass can be picked up with the right hand, with the left hand, squeezing hard, with all the fingers, with just a few, at any time, from a certain moment, just up to a moment, underneath, along the edge… If there is a rule forcing you to take the glass , it will be a principle if seen in relation to the rule, take it with your right hand. More specific norms tend to be more effective, clearer, more objective and direct. The new wording of Article 3-A of the CPP makes it possible to give normative force and effectiveness to the constitutional accusatory principle. The definitive institution of the accusatory system at the heart of the criminal process must be received with cheers. Requires compliance with the CF. It reinforces its enforceability. It affects, by tacit revocation, the rules of procedural legislation that provide otherwise. It puts an end to hermeneutical doubts that existed in relation to certain devices. All provisions of the CPP that authorize the judge’s initiative in the investigation and instruction phases are tacitly revoked. Article 156 , among others, is revokedwhen he states that the judge can, ex officio, order the production of evidence and take steps. The judge cannot replace the probative role of the ministerial body, as the judge is not a deputy prosecutor, a possibility that no longer existed, according to our comments on article 156.

Repeal of provisions that authorized the judge to replace the probative role of the prosecutor: According to the wording of this article 3-A, the criminal procedure has an accusatory structure, and the replacement of the probative role of the prosecution body is prohibited . Before, it was a general principle of constitutional law. Now, a specific norm. The probationary behavior of the judge is prohibited, that is, he is prohibited from initiating probationary procedures. Some provisions of the CPP are tacitly revoked. The investigating judge can no longer, ex officio, verify the falsehood ( article 147 ), submit the accused to a medico-legal examination ( article 149 ), order the anticipated production of evidence ( article 156, item I), determine measures to resolve doubts (Article 156, items II and 404 ), carry out a new interrogation ( Article 196 ), hear witnesses other than those indicated by the parties ( Article 209 ), take testimony in advance ( Article 225 ) and order the dispatch of search warrant ( Article 242 ).


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