Art. 3rd-B. The guarantee judge is responsible for controlling the legality of the criminal investigation and for safeguarding individual rights whose franchise has been reserved for prior authorization by the Judiciary, and it is incumbent upon him in particular to (Included by Law No. 13,964, of 2019) (Effective):
– I – receive immediate communication from the prison, pursuant to item LXII of the caput of art. 5 of the Federal Constitution;
II – receive the arrest warrant in flagrante delicto to control the legality of the arrest, subject to the provisions of art. 310 of this Code;
III – ensure that the prisoner’s rights are observed, and may determine that the prisoner be brought before him at any time;
IV – be informed about the initiation of any criminal investigation;
V – decide on the request for provisional arrest or other precautionary measure, subject to the provisions of paragraph 1 of this article;
VI – extend the provisional arrest or other precautionary measure, as well as replace or revoke them, ensuring, in the first case, the exercise of adversary proceedings in a public and oral hearing, in the form of the provisions of this Code or in relevant special legislation;
VII – decide on the request for the anticipated production of evidence considered urgent and non-repeatable, ensuring the contradictory and ample defense in public and oral hearings;
VIII – extend the duration of the investigation, with the suspect being arrested, in view of the reasons given by the police authority and in compliance with the provisions of § 2 of this article;
IX – order the suspension of the police investigation when there is no reasonable basis for its initiation or continuation;
X – request documents, reports and information from the police chief on the progress of the investigation;
XI – decide on the requirements for:
a) telephone interception, the flow of communications in information technology and telematics systems or other forms of communication;
b) removal of fiscal, banking, data and telephone secrecy;
c) house search and seizure;
d) access to confidential information;
e) other means of obtaining evidence that restrict fundamental rights of the investigated person;
XII – judge the habeas corpus filed before the filing of the complaint;
XIII – determine the initiation of an incident of mental insanity;
XIV – decide on the receipt of the denouncement or complaint, under the terms of art. 399 of this Code;
XV – promptly ensure, when necessary, the right granted to the person being investigated and his/her defender of access to all information and evidence produced within the scope of the criminal investigation, except with regard, strictly, to the diligences in progress;
XVI – grant a request for the admission of a technical assistant to monitor the production of the expertise;
XVII – decide on the homologation of a criminal non-prosecution agreement or those of award-winning collaboration, when formalized during the investigation;
XVIII – other matters inherent to the attributions defined in the caput of this article.
§ 1 (VETOED).
§ 2 If the investigated person is arrested, the guarantee judge may, through representation of the police authority and hearing the Public Prosecutor’s Office, extend, once, the duration of the investigation for up to 15 (fifteen) days, after which, if still the investigation is not completed, the arrest will be immediately relaxed.
Introducing the Judge of Warranties
Features of the guarantees judge system:The anti-crime package, Law n. 13,964, of October 24, 2019, introduced, in the procedural order, the judge of guarantees. Understanding this system is simple: the judicial functions of examining the legality of precautionary and invasive measures in the investigation phase are carried out by a judge; the instruction and judgment of the process are undertaken by another. The judge who authorizes pre-procedural coercive measures (precautionary and invasive) is not the same as the one who instructs and judges, although there is no impediment for the latter, upon prior request, to authorize them. It is a single process and it is processed in the same instance. Judgment and instance are one. Instances are recursive hierarchical degrees. There is no appeal from the guarantee judge to the investigating judge. The instance of both magistrates is the same. Despite being created and regulated by a few normative devices, it configures a profound transformation of criminal prosecution. It is a leap towards the effectiveness of criminal justice, which consists, roughly, in the acquittal of the innocent and the conviction of the guilty, that is, in the protection of two fundamental constitutional principles that are part of the procedural relationship: individual guarantees and public safety. We emphasize: the effectiveness gain is real for both principles. The 1941 codification is the wild procedure. The judge of guarantees represents your taming. It is the civilized procedural relationship. The Code of Criminal Procedure, although dating from 1941, has been modified over the years, adapting to new times and new realities. Its improvement has been constant. It is not an outdated text, although it needs some changes, especially in the appeal part – which we don’t think is a difficult task – and the express revocation of some devices that are already tacitly revoked. The judge of the guarantees joined the train of refinement of the procedural norm. With different nomenclatures, it is already in practice in several countries, including Italy, Portugal, France, Germany, Mexico, Chile, Paraguay and Colombia. It is not, therefore, national innovation. It is known that the fact that an institute is in force in other countries does not constitute a certificate of efficiency. It is necessary to put it to work in order to know its defects and qualities. The warning that should be made is that political and ideological motivations should be removed from this evaluation, given that they, vaporizing logic, annihilate legal thought. The guarantee judge is not and cannot be proactive. He is ruled by inertia. You already have the police and prosecutor investigating. The latter, it should be noted, does so anomalously when it is not a crime whose police investigation could be jeopardized by economic or political influence (the MP is only authorized to investigate when there is a probability of political/economic influence in the police investigation – different jurisprudence effective in 2020). It would be an exaggeration to put another one, the judge, to exercise this function. Judge leading investigation is anti-jurisdiction, denial of procedural function, usurpation of police function. doing so anomalously when it is not a crime whose police investigation could be jeopardized by economic or political influence (the MP is only authorized to investigate when there is a probability of political/economic influence in the police investigation – separate jurisprudence in force in 2020). It would be an exaggeration to put another one, the judge, to exercise this function. Judge leading investigation is anti-jurisdiction, denial of procedural function, usurpation of police function. doing so anomalously when it is not a crime whose police investigation could be jeopardized by economic or political influence (the MP is only authorized to investigate when there is a probability of political/economic influence in the police investigation – separate jurisprudence in force in 2020). It would be an exaggeration to put another one, the judge, to exercise this function. Judge leading investigation is anti-jurisdiction, denial of procedural function, usurpation of police function.
Judge of guarantees or legality?A guarantee judge is not an investigating judge. Even less judge defending the investigated. That name, judge of guarantees, taking into account these dark times of populist hermeneutics (2020), was not a good choice. It does not represent what he really is. It gives rise to the mistaken understanding that the judge will limit himself to protecting the rights of the accused, a mantra in the catalog of ideological follies. The guarantee judge not only assesses whether the request made by the investigating authority does not violate the law, but also authorizes invasive measures and imposes precautionary measures, including provisional arrest. By authorizing invasive measures and ordering arrest, he is not limiting himself to observing guarantee rules, but also public safety norms that guarantee the community. He lights two candles, one for assurance, one for security. For these reasons, the selected terminology was not appropriate. Judge of guarantees is a word that expresses only one aspect of his performance, that of guarantee. It does not reveal its action in favor of the collective, the one that grants effectiveness to the constitutional rule of public security, duty of the State and citizen’s right. A better baptism would have been given the namelegality judge . It would better express who he really is.
The process does not abdicate the unattainable search for truth. Important interpretation with regard to safeguarding the investigation: The system of the judge of guarantees does not distance the procedural instruction from the search for proximity to the truth. The truth that is sought in the process is not the whole truth. The whole truth, in principle, does not matter. What actually happened is irrelevant. The truth that interests the process is only that which lends itself to determine whether the delinquent hypothesis described in the initial is, or is not, true. The process seeks the truth as an immediate end. The mediate objective, or ultimate purpose, is to obtain negative or positive proof of the criminal hypothesis described in the complaint. In more precise terms, we seek to determine whether the evidenceauthorize the conviction that the delinquent hypothesis described in the opening constitutes history , . The process seeks the truth, but since it is unknowable, it is satisfied with conviction. On truth as the objective of the process, a topic that is currently so poorly understood, see the title Recent criticisms of the principle of real truth in Chapter 29 of our Brief General Theory of Criminal Procedure. The records of the investigation are safeguarded in the secretariat available to the Public Prosecutor’s Office and the defense. Can the judge access it directly? No. Can access through the parties? Yes. As per our comments under the heading Destination of investigation documentation, in comments to Article 3-C, paragraph 4, the parties may add parts of the investigation to the file after the end of the instruction. The request for attachment must be accompanied by reasons. The probative relevance of the documents whose incorporation to the file is required must be explained, under penalty of, in the absence of grounds, the request being rejected (except for the obvious reasons for the request expressed by the document itself). This interpretation is based on the circumstance that the records are safeguarded , that is, kept, separated, so as not to be annexed in their entirety, but only in what is effectively useful. Thus, the judge is not removed from the relevant totality of evidence . In the comments to Article 3-C, paragraph 4 in the titleDestination of investigation documentation, we explain the reasons why the evidentiary evidence of the investigation can be important for both the defense and the prosecution, that is, for the realization of justice, with prestige to guarantee and security. In advance: our thesis does not offend guarantor postulates. On the contrary, because it is based on the contradictions of the witnesses’ statements, those launched in the investigation and instruction, that, very commonly, the defense supports its thesis. In other words, it is by examining and comparing these testimonies that Justice can more safely approach the truth. A very important fact should be noted: the parties, especially the prosecutor, need to intensify their proactivity, compared to the previous system. The judge ceases to exercise functions that are definitely not his to, with serenity and rested spirit, judge. The gain to impartiality is immeasurable. Guaranteeism sometimes sets its own traps. It defends the idea of an adversarial process, where one party, the accuser – a member of an extremely strong institution with broad investigative powers (anomalous and illegitimate amplitude when the possibility of political or economic influence in police investigations is absent) – will fence with miserable people who, not infrequently, they do not even have the money to pay for the ticket for the collective to appear at the instruction and judgment hearing.
The quest for impartiality
We are the unconscious: When it comes to discovering and unveiling the power of the unconscious, the German Arthur Schopenhauer, with his admirable theory of the will ( The world as will and representation, 1818), came ahead of Sigmund Freud. The will, for the philosopher of the 19th century, is the fundamental principle of nature. This force does not bend to the laws of reason. He writes that “in reality the process of our inner thoughts is not as simple as in his theory, for there many things are intertwined. To get an idea of this, let’s compare our consciousness to water of some depth: clearly conscious thoughts make up the surface; the mass of water, on the contrary, is formed by confused thoughts, feelings, echoes of intuition and experiences, permeated by the disposition of our will that is the core of our being”. In several other passages, Schopenhauer describes the power of the will, which, correctly translated, is the unconscious. Sigmund Freud drank from this source. A few years later, the doctor from Vienna said that we are where we do not know, and we know where we are not. We are not only what we think we are. We are more: we are also what we remember and what we forget; we are the words we exchange, the mistakes we make, the impulses we ‘accidentally’ give in to. Self, said Sigmund, is not master of its own abode.
The computer and the human brain: A data receiver and processor that performs various digital operations, that is, a computer, works differently from the human brain. The computer stores the information on the HD (hard disk or winchester). It’s your memory. At any time, the information stored there, an intertwined array of bytes (units of digital information), can be retrieved by the processor (the “thinking” system of the machine). Once the information is removed (deleted) from the hard disk (by expelling the “trash” from the software), there is no way to retrieve it. What has been erased disappears. Leaves no traces. It will have no influence on the processor. With the brain something different happens. All information that passes through the senses is recorded in memory, even that information not perceived by consciousness, by attention. Not only is all the information received by the senses recorded, but also all thoughts, reasoning, emotions and feelings. If someone, walking, passes a tree by the sidewalk, or a wall, or a gate, even if he does not pay attention to these things, and as long as they have been within the reach of vision, they will be engraved in the memory. This, contrary to what happens with the computer, does not mean that these images can be rescued, that is, brought to consciousness. If they didn’t get attention, their imprint on memory is weak. It’s like a stamp. If the impression is not strong, the brand is weak. Weak marks cannot be read. Impressions not sufficiently impregnated with biophysical and chemical energy, consciousness cannot recover. However, they remain there, engraved in the unconscious, and, being there, they have the power to influence the direction of conscious thoughts and decisions. We decide any subject not only for reasons we know, but mainly for reasons we ignore. For this reason, the thinker from Vienna developed the idea that we think where we are not, and we are where we do not think. consciousness cannot recover. However, they remain there, engraved in the unconscious, and, being there, they have the power to influence the course of conscious thoughts and decisions. We decide any subject not only for reasons we know, but mainly for reasons we ignore. For this reason, the thinker from Vienna developed the idea that we think where we are not, and we are where we do not think. consciousness cannot recover. However, they remain there, engraved in the unconscious, and, being there, they have the power to influence the course of conscious thoughts and decisions. We decide any subject not only for reasons we know, but mainly for reasons we ignore. For this reason, the thinker from Vienna developed the idea that we think where we are not, and we are where we do not think.
Motivated cognition, cognitive dissonance and conviction: Kevin Dunbar, psychologist at Stanford University, quoted by Rômulo de Andrade Moreira, in the article Are people getting dumber? , published on the Justificando portal , clarifies that “our brain releases a dopamine discharge, a neurotransmitter linked to the sensation of pleasure, when we receive information that confirms our beliefs. We are programmed not to change our minds. Even if that means believing things that aren’t true.” Deviations in knowledge are called biases. They are studied by psychology. Are many. The anchor deviationoccurs when the mind is focused on a past situation that serves as a reference. It can be a traumatic experience (a robbery suffered by a family member, for example). Commitment escalation , persistence in error for narcissistic reasons. Repetition disorder , when a statement is repeated over and over again to the point where it is difficult to contradict it. Deviation from belief , founded on faith, religious or otherwise. confirmation bypass, the belief in what one believes in advance and that produces the effect of isolating and ignoring any counterindices and counterarguments. The judge is not immune to these deviations. The news of the crime always triggers the instinct of protection of the species. The news of the serious and revolting crime finds a double motivation in the man for the prejudgment: the news of the seriousness and the revolt. The process is the system, an apparatus, an ingenuity, technically created and perfected by scholars over the years, which aims to remove prejudgment from the judgment. Before being a procedure, a set of acts, it is a refined elaboration of the intellect that seeks to protect the judge from partiality. One cannot judge oneself well without technique, without knowledge, without the science of law. The process is the instrument that ultimately it aims to prevent the judge from believing what he wants to believe, an absolutely human tendency. The guarantee judge is yet another improvement of this system in the sense of removing these biases from the instruction and judgment phase. Motivated cognition (believing in advance) causes cognitive dissonance, which in turn generates conviction.Cognitive motivation are various reasons and motives that interfere with consciousness, many of them unconscious. The origin of these reasons is in the personal history of each one, in the experiences, in the accidents along the way. We believe that there is something constitutional, an innate tendency resulting from genetic memory, which traces the course of cognitive motivation (we develop this subject in the title Prohibition. Motivation and irrationality , in comments to article 28-A). Cognitive motivation produces the anticipatory tendency of conviction. It is what is ready and waiting for the event, the news. It is the way we are positioned to assimilate the facts. The arrival of the news to our psychic apparatus is molded to its motivational structure. It is deformed accordingly. Cognitive motivation is the soil from which other thoughts, evaluations, and conclusions spring. In magistrates, they are externalized in their tendencies, such as liberal, conservative, guarantor, punitive… To create a narrative, the judge – a historian – does not escape the interference of motivational deviation. Before starting the research, the motivational bias is already present. The motivational deviation is human. It represents the absence of neutrality. The legal order cannot demand neutrality from the individual.part of the world . Of our individuality, identity, inequality. In dialogue with our colleague Lademir Gomes da Rocha, attorney and lawyer, he, in a happy pronouncement, made us see that being impartial means being consistent with your convictions and expressing them honestly, recognizing, however, the provisional nature of every belief or conviction . Everything we know is a hypothesis. This is all the more necessary the more power society confers on those who exercise a function.In a second moment, during the course of the research, his mind is infected by yet another dysfunction, cognitive dissonance. It is the blindfold placed over your thoughts that blinds your conscience. Any evidence that contradicts the hypothesis elaborated is discarded. It’s not relevant. It doesn’t matter. It is annulled by another contraindication, even if of less probative value. He only accepts what pleases him, which matches his ideas and hypotheses. There is another factor that adds to the effects of cognitive dissonance. What contradicts disturbs the progress of the works. It’s the sandcastle being built and a third party chimes in saying it should be considered more of a tower. To respond to the suggestion, just dismantling the castle and redoing its bases in order to support the new tower. It is not easy to assimilate the idea of destroying what has been painstakingly built. At the end, in a third moment, conviction arrives. When conviction is won, impartiality, reasonableness, reason itself, are silenced. Hence the reason why, not infrequently, bad faith is unduly recognized in motions for clarification. It is an appeal filed after the moment of the sedimentation of the conviction. The embargoes are against the conviction. It is difficult for the judge to see any foundation in them when all certainties are already protected by conviction. As Friedrich Nietzsche once said, convictions are prisons, more inimical to truth than lies themselves. Conviction is animal force that annihilates uncertainty. It is absolutely indispensable to the behavior and survival of the species. On the strength of conviction and its origins,Conviction. Strength at the service of title uncertainty Evidence, conviction and proof, in comments on article 155. Reason obeys our desires, our will. The good judge is the one devoid of ideology and endowed with greater capacity to block the interference of his personal motivations in the decision. Judges weakened by the effect of ideologies are invalid for the exercise of criminal jurisdiction. When examining the procedural legal order, they can only see either the principle of security or the principle of guarantee. They must be removed from criminal jurisdiction. They may exercise another competence, but they are unprepared for the competence that decides the fate of equals, the accused and society. Removal does not violate the independence of the judge. It finds hermeneutical reasons and is indispensable for the realization of responsible criminal jurisdiction.
Contamination: Bernd Schünemann, full professor at the Ludwig Maximilians Universität in Munich, in his work Studies in Criminal Law, Criminal Procedural Law and Philosophy of Law , reports on research carried out with judges and prosecutors. Based on the results of the research, he concludes that the judge, when receiving the complaint, instructing the process and passing judgment, is not only accumulating functions, but exercising conflicting activities, which disturbs the judgment. Among other causes, it concludes that the magistrate “when finding himself in a turbid situation, is guided by the preceding assessment and coming from a person he accepts as suitable for a behavioral comparison” (SCHÜNEMANN, Bernd. Studies in criminal law, criminal procedural law and philosophy of law. São Paulo: Marcial Pons, 2013). The preceding assessment can be either the police chief’s report, which contains the narrative of the criminal hypothesis and the reasons for the indictment, or the prosecution’s assessment regarding the existence of just cause. The German jurist is right. Those who investigate create hypotheses. Those who create hypotheses seek to prove it. Those who seek proof activate cognitive dissonance. Cognitive dissonance impairs knowledge of the rebuttal. Those who reach their goal love themselves a little more. Man is driven by the desire for success in his undertakings, any undertaking. In order to apply provisional arrest, the judge needs, under the terms of the law, to be convinced of the existence of a crime and evidence of authorship.. They also need to form imputative convictions to apply non-prison invasive and precautionary measures. It cannot do so if it is not convinced of the presence of fumus boni iuris.Once the conviction is formed, how to get rid of it at the time of the sentence? Now, when conviction knocks at the front door, reason rushes in at the back. If there are measures applied at the investigation stage – it is curious – the judge finds himself infected by the conviction even before the existence of a criminal action against the investigated person. His conviction precedes that of the accuser himself. How can we not recognize that in the current system the judge has conflicting functions? Contamination is pre-procedural. Receiving the complaint itself is already a contaminating act, as it is vital to examine the just cause for admitting it. No one submits to the ordeals of criminal action without convincing as to authoritative evidence. As the narrative of the initial piece is commonly limited to describing facts, unaccompanied by the justification relative to the proof of such facts, the judge must, strictly speaking, to study the inquisitorial evidence alone. What assures the parties that he will not decide, in the end, intimately and based on inquisitive evidence, without knowledge of the parties, without contradictory? Now, does the sentence, under these conditions, contain an ulterior motive, or does it not? Obviously yes. Receipt of the complaint constitutes a contaminating act of judgment. The anti-crime package did well by appointing the guarantee judge to carry out this act.
Unconscious guilt. The judge judging himself: The judge who judges cannot be the same one he arrests. When judging, the judge must be freed from the shackles that temporarily imprisoned the accused or from other coercive measures that have been applied. The magistrate’s judgment does not work like that of a computer. When judging can not deletefrom memory the provisional arrest he decreed. Believe me, you’re capable of it. It is not, however. To deny and not perceive unconscious influence is different from it not existing. The unconscious cannot be easily mastered. In the trial phase, the magistrate cannot be imprisoned by the possibility of the intrusion of guilt. The question is: how does the judge feel when he recognizes the innocence of the one he held in prison in advance for months or years? Anything? Are you professional, technical, immune to feelings? Did he learn in law school, or from books, to insulate feelings from evaluations? There may not be, as we know, a judicial error in the provisional arrest of the innocent accused. The arrest of the innocent may have been perfectly legal. But even so, the feeling of guilt is inevitable. Rational recognition of the absence of guilt does not have the power to expel intimate remorse. The unconscious is relatively indifferent to reason, because in the relationship between the two, the one who silently dominates is the first. He tattoos the suffering of the other in his synapses. Where will the magistrate who arrested the accused for a long period find comfort to, recognizing him innocent at the end of the process, acquit him? Before acquitting the accused, he will have to acquit himself. The judge who acquits the provisional prisoner indirectly disapproves of his conduct of the process. Judge is not transcendental being. He is human. Recognizing error, however, is not a common quality among men. Both the arrest decreed during the course of the investigation, before the initiation of the criminal action, and the one decreed ex officio during the instruction, provoke an almost invincible predisposition to condemnation. Faced with the arrest of the accused in the course of the process, cognitive dissonance is triggered. Defense system that it is, it ignores contraindications and sets the stage for the outcome without (the judge’s) fault. It is an unconscious ego protection system. The ego wears fantasies to hide from the repressions of the superego and the impulsiveness of the id. It is the function of the ego to house. This is how the judge, prisoner of guilt, definitively arrests, on some occasions, an innocent person. Based on these reasons, the anti-crime package made provision for a judge to monitor the investigation and another for the instruction, and also prohibited arrest on the sole initiative of the judge in the course of the instruction. It should be noted: among the coercive measures (invasive and precautionary), the one that most produces the effect of guilt is early arrest.
Populist judge and warrior:Mythology tells that Narcissus, son of the gods, was very beautiful. Consulted by his parents, the oracle predicted that the boy would live for many years, as long as he did not look at his own face. Women loved him because of his exceptional beauty. Narcissus, arrogant and superb, ignored them. Scorned, the women begged the gods to avenge them. Nemesis decreed that Narcissus would fall in love with his own reflection. Thirsty, when approaching a pond to drink, Narciso came across his own face, and fell in love with him. Paralyzed in the contemplation of her beauty, he withered and died. Nemesis turned him into a flower, narcissus. Law operators, judges, lawyers, prosecutors, delegates can be victims of narcissism. In narcissism, the greatness of self-love does not allow recognition of the other. Among lovers, the narcissist is the most faithful: is incapable of loving another. Nothing can come between him and his passion. Needy – because he is unable to establish relationships of exchange of affection –, he constantly seeks the love of others, as a resource to strengthen self-love. It is self-centered, selfish and ambitious personality. He covets anything that arouses admiration. Other people’s admiration has the sole aim of invigorating one’s own. The right operator with these characteristics may represent a risk to the community. The conservative, narcissistic judge can use his office to fuel self-love. For this, one strategy is to seek the applause and support of the crowds. The crowd is not rational. It is group unconscious. Terry Pratchett, English writer, it said that the intelligence of a creature known as a crowd is equal to the square root of the number of people in it. The individual, in the crowd, gives up his personality and adheres to the collective identity, an inferior identity, of the species, animal. Crowds are always punitive, as the news of a crime is a threat to the species. Irrational, unconsciousness does not distinguish news of a crime from the crime itself. Machiavelli already advised the prince to seek legitimacy in the crowds when he wanted to circumvent laws and rules of institutions. The multitude is the mother of all tyrants, in the words of Dionysius of Halicarnassus. Seeking legitimacy before the people is an old strategy of tyrants. For the narcissist, what matters is his ambition, which, in some way, will reinforce his self-esteem. As your affective need is unlimited, your project is macromaniac. As a judge, he could become a populist, seeking legitimacy in the cries of the crowds. They will protect him so that he can trample laws and institutions when on the way to his goals. Institutions and their correctional agencies must always be alert when Narciso’s head appears in the window. It must be severed immediately. In the vacillation, the remaining time may not be enough to avoid institutional catastrophes. Then it will be late. The system of the judge of guarantees helps to protect the Judiciary from the warrior and populist judge. The guarantee judge does not investigate. It doesn’t hold on its own. He applies the law by authorizing arrest or applying coercive precautionary measures when the legal requirements are met. It’s not a guarantee. He is a judge of legality. As already said, he lights two candles, one for warranty, one for security. The system prevents him from disguising himself as news to launch and lead crusades against Evil.
Analysis of objections to the guarantee judge’s system
Examining criticisms of the bailiff system: The bailiff system entails less costs for exercising jurisdiction and less work for judges (and more for parties). It reinforces the effectiveness of criminal justice insofar as it honors the principles of guarantee and public safety. Its devices regulate the procedural relationship. There is a single unconstitutional provision in the anti-crime package, since it deals with judicial organization, whatever the one that provides for the rotation of magistrates – sole paragraph of article 3-D . There is no rework, no violation of the natural judge rule, and no new federal laws are needed to regulate it.
There is no increase in costs or work: The guarantee judges are the same magistrates who act today in the first instance. There is a distribution, or division, of functions. Judges don’t work twice as hard. The same work that was done by one judge is divided between two judges. Each one does a part. There is a reduction of work insofar as it will be up to the parties to assemble, once the instruction is closed, the parts of the investigation that are relevant to the application of the criminal law. This is the most appropriate interpretation of the expression autos acautelados contained in article 3-D, paragraph 3. The investigating judge is exempt from examining the investigation files for the purpose of assessing the existence of just cause, given that the act of receiving the complaint is the responsibility of the guarantees judge. With the submission by the parties, by means of a necessarily substantiated petition, of documents relevant to the investigation (and the justification must relate to the relevance for the evidence), the judge is freed from having to delve into the investigation to find, among various documents without utility, which effectively matters in terms of evidence. More work? Not for the judge. For parties, yes.
The judge of guarantees is not a defender: As already said, the expression judge of guarantees, adopted by the legislator, is not the most appropriate. It gives the impression that the judge only supervises the guarantees of the investigated person, which is not true. The judge is responsible for guarantees, yes, but not only for them. It is he who authorizes invasive and precautionary measures, including temporary and preventive arrests. Therefore, it follows, he is a judge of legality. It oversees both the guarantee and ensures compliance with the constitutional principle of public safety. Now, if he is the one who, in the presence of the requirements of provisional arrest, decrees it, he is, obviously, also a judge of public security.
The system’s norms are of competence and constitutional: As the judge of guarantees is a norm of competence, and in view of the provisions of article 96, item I of the CF , which provides that it is exclusively up to the courts to prepare their internal regulations providing for the jurisdiction , there are those who maintain that federal law could not have created it. This interpretation of Article 96 is inadequate. Competence concerns the procedural relationship, so the competence to legislate on it belongs to the Union, according to article 22 of the CF : it is exclusively up to the Union to legislate on procedural law. If it were not for competence in procedural law, the CPP would be unconstitutional in all its chapters that deal with competence, namely, competence for the place of the infraction (articles 70 and 71), competence for the domicile or residence of the defendant (articles 72 and 73) , competence for the nature of the offense (article 74), competence for distribution (article 75), competence for connection or continence (articles 76 to 82), competence for prevention (article 83) and competence for the prerogative of function (articles 84 to 87) . When article 96, item I of the CF , says that it is the exclusive competence of the courts to prepare their internal regulations providing for jurisdiction,mention is made of the jurisdiction of the various bodies that make up the courts, their divisions, special bodies, and also the jurisdiction due to the nature of the infraction, which can be regulated by laws of judicial organization, according to article 74 of the CPP, which provides : “ The competence due to the nature of the infraction will be regulated by the laws of judicial organization, except for the exclusive competence of the Jury Court.” Judicial organization laws are authorized to establish rules of jurisdiction taking into account the nature of the offence, that is, the type of offence. These norms can create specialized courts for the prosecution and judgment of certain crimes, such as domestic violence, traffic crimes, crimes against the financial system, criminal organization, drugs, financial crimes, crimes against minors, crimes of corruption and money laundering. money. In the case of the judge of guarantees, jurisdiction is not created due to the nature of the infraction. The guarantee judge’s system does not consider the nature of the infringement. All infractions are, with few exceptions, subject to it. We take one more step. Let it not be said that the relationship established between the guarantee judge and the investigating authority and/or the accused is not a procedural relationship, I mean, it’s not a process. Where there is a request for jurisdiction, where there is a right to jurisdiction, where there is a duty and power to provide jurisdiction, what there is is a procedural relationship. Whether it is an accessory relationship, or a relationship prior to the main relationship, it does not matter, it is a process relationship, that is: a process. Therefore, in conclusion, the institution of the guarantees judge is a procedural rule, whose competence to legislate belongs to the Union. There is definitely no unconstitutionality. whose competence to legislate lies with the Union. There is definitely no unconstitutionality. whose competence to legislate lies with the Union. There is definitely no unconstitutionality.
There is no need for inquiries or processes to be electronic: The argument that, in order for the guarantee judge to be installed, inquiries and processes must be electronic seemed, in principle, convincing. However, better meditating, it is not right. There are other ways for the judge and delegate to communicate and exchange documents with a record of authenticity. This communication can be carried out through e-mails, with or without attachment of documents. Register that any cell phone is capable of photographing and sending documents to the computer, from which messages can be sent. Cell phones also send emails. To ensure the authenticity of the e-mails, it is enough to configure the server so that they are kept there, which can confer authenticity. WhatsApp virtual communication systemdoes not lend itself to this communication. It is endowed with end-to-end encryption. Messages cannot be redeemed on the server. Unable to authenticate messages. The official e-mail addresses of the police authority and the judge must be used, which provides security and authenticity to the communications. There is also the CISCO system, which allows videoconferencing. Resolution no. 314/2020 of the CNJ provides for the joint efforts of the CNJ and the company CISCO with the purpose of providing Brazilian magistrates with a videoconferencing solution for the practice of procedural acts via the internet, especially hearings and trial sessions. With the Term of Technical Cooperation n. 007/2020, the CISCO system was made available to all courts and tribunals. It can be used to perform virtual acts,www.cnj.jus.br/plataforma-videoconfencia-nacional . There is no impediment for the Cooperation Agreement to be extended for the police authority to operate it. The CISCO system makes it possible to carry out teleconferences, with or without recording, and also to send and receive documents. Recordings can be saved to the cloud or to your computer. A doubt: what if there is no internet network in the region? There is a telephone and post office. What is not urgent can be solved by the post office. What is urgent can be resolved by phone call between the police authority and the guarantee judge. After the phone call, both must launch a communication report by telephone. The minutes of communication, signed by the police authority and the judge, contain the requests and judicial decisions. A temporary solution, as in a few years there will be no place in Brazil that does not have an internet network. There is no irregularity in this form of communication. Article 370, paragraph 2 of the CPP is applicable to the species : If there is no body for the publication of judicial acts in the district, the subpoena shall be served directly by the notary, by warrant, or by post with proof of receipt, or by any other another suitable means. It should be noted that Article 289 authorizes the judge to determine imprisonment by any means of communication. Likewise, article 299. If even the arrest can be ordered by any means of communication, what in the process could not also be done by any means of communication ? If the clerk can communicate by any means, why not the judge and the police authority? Furthermore, there is the principle according to which there is no nullity when, practiced in another way, the act has reached its end.
Districts with a single judge. Videoconferencing and custody hearing: It is stated that the system could not be implemented in districts where there is only one judge. In fact, the possibility of missing a judge also occurs in districts that have two judges, as one of them may be on vacation. The sole paragraph of Article 3-D, by prescribing that in districts where there is only one judge, the courts will create a system of rotation of magistrates, regulating judicial organization, is unconstitutional. In counties where there are only two judges, the role of guarantee judge will have to be carried out by a judge from another district or by a central guarantee judge. We explain why. If there are only two judges, the civil court judge may be on vacation and, if the criminal court judge performs the function of guarantees judge, he will be prevented from acting in the case as an investigating judge (Article 3-D). In other words, the county has no investigating judge for the process. There is no impediment to the establishment of a center of guarantee judges valid for the entire State or for the entire Region (federal justice). This experience already exists in São Paulo State Justice. Another alternative, and one that seems more appropriate to us, is to create one or more hubs distributed among the most populous cities. It is the warrants judge who presides over the custody hearing. Some custody hearings will necessarily have to be held by videoconference. We know the importance of the physical presence of the accused for holding the custody hearing. Direct and personal communication is more complete. In her the look, the way of speaking, the intonation of the voice, the gestures are better perceived. With proximity, expressions acquire fuller meaning. With the same sentence, opposite meanings can be expressed, depending on the intonation variations given to the voice in the course of speech. Physical proximity enhances these perceptions. On the other hand, the consideration that there are cases in which there are few judges in the district or when the neighboring district is far away. In these circumstances, the personal custody hearing is not feasible, including on account of the loss of speed. Another pertinent theme concerns the possibility of the judge of the civil court exercising the function of judge of guarantees. There is no illegality in this, as long as there is provision in the law of judicial organization. Judges of law and federal judges are appointed to exercise both civil and criminal jurisdiction. They are qualified, they have the necessary knowledge. The National Council of Justice decided in PCA n. 0000930-47.2020.2.00.0000, on 02/07/2020, due to the impossibility of holding a custody hearing by videoconference. This decision needs to be reexamined, also because it does not fall within the competence of the CNJ, which is to There is no illegality in this, as long as there is provision in the law of judicial organization. Judges of law and federal judges are appointed to exercise both civil and criminal jurisdiction. They are qualified, they have the necessary knowledge. The National Council of Justice decided in PCA n. 0000930-47.2020.2.00.0000, on 02/07/2020, due to the impossibility of holding a custody hearing by videoconference. This decision needs to be reexamined, also because it does not fall within the competence of the CNJ, which is to There is no illegality in this, as long as there is provision in the law of judicial organization. Judges of law and federal judges are appointed to exercise both civil and criminal jurisdiction. They are qualified, they have the necessary knowledge. The National Council of Justice decided in PCA n. 0000930-47.2020.2.00.0000, on 02/07/2020, due to the impossibility of holding a custody hearing by videoconference. This decision needs to be reexamined, also because it does not fall within the competence of the CNJ, which is to on 02/07/2020, due to the impossibility of holding a custody hearing by videoconference. This decision needs to be reexamined, also because it does not fall within the competence of the CNJ, which is to on 02/07/2020, due to the impossibility of holding a custody hearing by videoconference. This decision needs to be reexamined, also because it does not fall within the competence of the CNJ, which is tocontrol of the administrative and financial performance of the Judiciary and the fulfillment of the functional duties of judges ( article 103-B, paragraph 4 of the CF ). Functional and procedural duties are not to be confused. Those concern the server’s relationship with the administration; these, with the process.
There is no violation of the principle of the natural judge: The principle of the natural judge translates into that the magistrate must have his competence determined before the fact to be judged. He cannot be appointed, designated, appointed to judge a specific case. Since the jurisdiction of the guarantee judge is previously provided for by law, the argument that there would be a violation of the natural judge sounds eccentric. Clearly, in the event of creating central guarantees, there is a need to fill positions, with vacancies being filled taking into account the rules of seniority and merit. Judges cannot be appointed. Nor is there any impediment to the distribution of functions, guarantees and instruction. Since there is a previous law of judicial organization regulating the matter, it is not possible to consider a violation of the natural judge.
No need to edit new laws: The judge of guarantees is already sufficiently regulated by the anti-crime package. New federal laws are unnecessary, only new judicial organization laws.
Jurisdiction and functions of the judge of guarantees
Rules applicable to the investigation and criminal investigation procedure (PIC): The rules relating to the guarantee judge do not apply only to the police investigation. They extend to the criminal investigation procedure (PIC). Hence the reason for Article 3-B to say that the guarantee judge is responsible for controlling the legality of the criminal investigation. By the way, in the absence of regulation by law, the CPP rules relating to police investigations are applicable to investigations carried out by the Public Prosecutor’s Office, unless they conflict with rules of the same hierarchy.
Immediate communication of arrest (item I): The arrest of any person must be communicated to the judge. It should be made to the guarantee judge, not the investigating judge. The CF, in its article 5, item LXII , provides that the arrest of any person and the place where he is found will be communicated immediately to the competent judge and the family of the prisoner or to the person indicated by him . Article 306 of the CPP provides for this communication. We refer the reader to the comments on article 306 .
Receive the report of arrest in flagrante delicto (item II): The report of arrest in flagrante delicto must be sent to the judge within twenty-four hours after the arrest is made (see article 306, second paragraph). Upon receipt of the report, the judge will provide for compliance with the provisions of article 310 of the CPP .
Ensure the observance of the prisoner’s rights (item III): The guarantee judge must ensure the prisoner’s rights. He must promote a custody hearing with the presence of the accused, his appointed lawyer or member of the Public Defender’s Office and the member of the Public Ministry, pursuant to article 310 of the CPP .
Need to notify the judge of the initiation of a criminal investigation (item IV):The news of a crime, coming to the knowledge of the police authority, must be investigated. The initiation of this investigation must be communicated to the guarantee judge. This duty extends to the Public Ministry. This item IV does not violate the accusatory principle. The accusatory principle concerns the process, not the investigations, and means that it is the Public Ministry that promotes public criminal action. Promoting means proposing and moving forward with action. It has the sense, mainly, of making use of legal means aiming to prove the fact described in the opening document of the process. It bears no relation to investigative activity. One cannot place the principle out of the place where it belongs. In investigations, there is a need to notify the Judiciary. The rule of law, in which individual guarantees are inserted, it does not admit power without control and totally secret investigations. Power, especially that exercised in relation to the citizen, must be supervised by another power. Only power controls other power and imposes limits on it. The investigated cannot be at the mercy of the investigator, without the latter being supervised.
Provisional arrest and other precautionary measures (item V): It is up to the guarantees judge to decide on the request for provisional arrest or other precautionary measure. On the subject, see comments on article 310 of the CPP .
Extension of provisional arrest or other precautionary measure (item VI):It is the competence of the judge of guarantees to extend the provisional arrest or other precautionary measure, as well as to replace or revoke them, ensuring, in the first case, the exercise of the contradictory in public and oral hearing. Pursuant to article 316 and its sole paragraph, the judge may, ex officio or at the request of the parties, revoke pre-trial detention if, during the course of the investigation or proceeding, he verifies that there is no reason for it to continue, as well as decreeing it again. it, if there are reasons to justify it. Once preventive detention has been decreed, the body issuing the decision must review the need for its maintenance every 90 (ninety) days, by means of a substantiated ex-officio decision, under penalty of the arrest becoming illegal. Temporary imprisonment is regulated by Law n. 7,960/1989and it fits when the following conditions are present: when it is essential for the investigations of the police inquiry; when the accused does not have a fixed residence or does not provide elements necessary to clarify his identity; and when there are well-founded reasons, in accordance with any evidence admitted in criminal law, of authorship or participation of the accused. Preventive detention is provided for in article 311 et seq. of the CPP.
Early production of evidence considered urgent and non-repeatable (item VII): It is the responsibility of the guarantees judge to decide on the request for the early production of evidence considered urgent and non-repeatable, ensuring the contradictory and ample defense in public and oral hearings. If there is an urgency or need for the measure to be carried out without the prior consent of the investigated person, there is no obstacle to the contradictory being carried out after the production of evidence. Article 156, item I , makes a similar prediction when it says that the judge may order, even before the criminal action is initiated, the anticipated production of evidence considered urgent and relevant, observing the need, adequacy and proportionality of the measure. This device, article 156, item I, is partially revoked insofar as the judge cannot, ex officio, determine the performance of these tests. On the subject, see comments on Article 156 .
Extension of the duration of the investigation ( item VIII):
The investigation, with the accused arrested, must end in ten days ( article 10 of the CPP ), except for an inquiry related to federal justice, when the deadline is fifteen days (article 66 of Law n. 5.010/1966). It is incumbent upon the guarantees judge to extend the duration of the investigation (and the PIC) when the investigated person is arrested, in view of the reasons given by the authority. Accordingly, paragraph 2. of the present device, if the investigated person is arrested, the guarantees judge may, through representation of the police authority and hearing the Public Ministry, extend, once, the duration of the investigation for up to 15 (fifteen) days, after which, if even if the investigation is not completed, the arrest will be immediately relaxed. The possibility of extension is extended, pursuant to article 3 of the CPP, the investigation of crimes with a procedure regulated by special laws.
Closing of the police inquiry ( item IV): The judge of guarantees may determine that the investigation be suspended. This measure is appropriate when, as examples, the fact investigated is not typical, or when prescription is present. Insufficient evidence does not justify suspending the investigation, as the purpose of the investigation is precisely to seek evidence.
Request for documents, reports and information (item X): The judge may request documents, reports and information from the police chief about the progress of the investigation. It is up to the guarantee judge to ensure the legality of the investigation. Therefore, he can and should request information regarding the investigation (and the PIC – criminal investigation procedure). The request is order. This is not a simple request. What characterizes an order is not the circumstance of whether or not there is a hierarchy between those who give and those who receive it. What differentiates a simple request (which can be denied) from an order is that the latter, unlike the former, is legally foreseen. When the law determines compliance with the requirement, it is an order. About the subject, see subtitleRequests from the judicial, ministerial and police authorities are to be fulfilled under the heading Relations between the police and the Public Prosecutor’s Office, in comments to Article 4.
Invasive measures of secrecy (item XI): There are measures that, because they are invasive or limiting the right to freedom, can only be applied with judicial authorization. They are said to be measures for which jurisdiction is reserved. They can only be decreed by the guarantees judge if there is an application. They are: interception of telephone, telematics and other forms of communication; removal of secrecy (tax, banking, data); search and seizure; and other means of obtaining evidence that restrict fundamental rights of the investigated person. With regard to illicit evidence and removal of secrecy, see comments on Article 157 . On search and seizure, see comments on articles 240 to 250 of the CPP .
Judgment of habeas corpus (item XII): The habeas corpus filed against an act of the police authority is processed and judged by the guarantees judge, not by the investigating judge. However, if the investigator is the prosecutor, the logic of the system refers the judgment of habeas corpus to the court. If the coercive authority is a Public Prosecutor or Public Prosecutor, the competence to prosecute and judge the habeas corpusbelongs to the court (Tribunal de Justiça and Tribunal Regional Federal, respectively). The justification for this understanding is that, as illegal coercion can, in theory, characterize the crime of abuse of authority, it is convenient that the body that examines and judges the alleged illegal coercion is the same that has the competence to prosecute and judge a possible crime of abuse of authority. Contrary conclusion would violate the logic of the system. Regarding habeas corpus , see article 647 et seq. It should be noted that habeas corpus can be granted ex officio by the guarantees judge (see the title Habeas corpus de ex officio in comments on article 654 ).
Incident of mental insanity (item XIII): When there is doubt about the mental integrity of the accused, the judge will order, at the request of the Public Ministry, the defender, the curator, the ascendant, descendant, sibling or spouse of the accused, that he be submitted to medico-legal examination. The examination may be ordered even during the investigation stage, upon representation by the police authority to the guarantees judge ( article 149, paragraph 1 ). Official initiative is rejected, as it is a matter of producing evidence.
Receipt of the complaint or complaint (item XIV): There is a material error in this item. He refers to Article 399 . It is understood that the reference is to article 396. The complaint is received or rejected in the step described in article 396. If received, summons on the accused is determined. Article 399 establishes that the judge must designate a day and time for the hearing, which clearly demonstrates that at this stage it is the investigating judge who acts. Assigning the guarantees of the function of receiving the complaint to the judge was an intelligent move. In order to receive the complaint, it is necessary to determine whether there is just cause. As the complaint is usually limited to describing the fact and requesting the application of the criminal law, without substantiating the evidence of the fact, the judge, in the previous system, was obliged to examine the evidence of the investigation in order to form a judgment on the existence of just cause. It was a solitary dive into the inquisitorial evidence without any contradictory. It was necessary to make a prejudgment, that is to say, to contaminate oneself. Finally, in the sentence, the judge could allow himself to be convinced by what he read in the investigation records, without the accompaniment and contradiction of the parties, and decide based on this hidden basis. It should be noted that the guarantee judge is subject to suffering the effects of contamination and partiality, since he is the one who determines invasive and precautionary measures, necessarily with the formation of a prior judgment. Upon receipt of the complaint, he may be under the effects of partiality. There is no impediment for the investigating judge to go back and revoke or cancel the receipt of the complaint made by the guarantees judge. Article 3-C stipulates that the decisions handed down by the guarantee judge are not binding on the investigation judge. Judge of guarantees and judge of investigation is a single instance. No appeal of decisions from the former to the latter. The receipt of the complaint and the previous acts can be revoked or annulled, and by both judges. About the topic, see titleRecognition of the ineptitude of the complaint after being received in comments to article 395.
Right of the investigated person and his defender to access the investigation (item XV): Item XV repeats the provisions of article 7, item XIV of Law n. 8,906/1994 . The lawyer has the right to examine, in any institution responsible for conducting an investigation, even without a power of attorney, records of flagrante delicto and investigations of any nature, completed or in progress, even if concluded by the authority, being able to copy parts and take notes, amid physical or digital. In the same sense, the binding Precedent 14 of the STF :It is the defender’s right, in the interest of the defendant, to have broad access to the evidence that, already documented in an investigative procedure carried out by a body with judicial police competence, concerns the exercise of the right of defense (see jurisprudence subsequent to the publication of the Precedent ) . . This item XV emphasizes that there is no right of access to proceedings in progress. The right to access the file does not cover evidence or evidence that has not yet been documented. Confidentiality is necessary for investigations. The result of the investigation, once formalized, is that it cannot be subtracted from the knowledge of the investigated person or his defender. Access includes the right to make copies. It constitutes provision of article 7, paragraph 12 of Law n. 8,906/1994, that non-compliance with the rights established in item XIV (right to examine records), the incomplete supply of records, or the supply of records in which parts already included in the investigative notebook were removed, imply criminal and functional liability for abuse of authority of the person who prevents the access of the lawyer with the intention of harming the exercise of the defense.
Admission of a technical assistant (item XVI): It is incumbent upon the guarantees judge to admit a technical assistant appointed by the investigated person. The investigated person has the right to accompany expertise through a technical assistant. The police authority cannot deny the corpus delicti examination when requested by the accused ( article 184 of the CPP ). You can, yes, deny the performance of expertise that is not necessary to clarify the truth. Clarification of the truth means clarification of the relevant truth for the application of a criminal law. If the request for a corpus delicti examination is denied by the police authority, which would constitute an exceptionality, or even an expert examination, the same request can be made again to the guarantee judge. If denied again, it is appropriate to file a writ of habeas corpus before the court. The inquiry aims at ascertaining the truth, favorable or not to the accused. This results in the possibility for the defender to present questions to the expert ( article 7, item XXI, letter “a” of Law n. 8.906/94). Failure to grant this opportunity to the accused implies nullity, especially if the expertise cannot be repeated in the criminal investigation. In the case of a corpus delicti examination, depending on what there was to be clarified, one could consider the absolute nullity of the process itself. This is because, in this case, we are no longer facing a mere nullity verified in the inquisitive phase, but procedural nullity, since, as detailed in the title Distinguishing illicit proof from nullity , subtitle Obtaining proof through a procedural act and nullity , in comments to the article 157, the corpus delicti examination, although practiced in the investigation, is a procedural act. In the absence of the examination or the requirement for its existence, it will be faced with absolute nullity ( article 564, III, “b”).
Approval of a non-criminal prosecution or plea bargain agreement (item XVII): When the criminal non-prosecution agreement or a plea bargain agreement are formalized during the investigation, it is up to the investigating judge to decide on the homologation. The criminal non-prosecution agreement is regulated by article 28-A of the CPP .
