Inadequate provisions and impediment of the investigating judge
Art. 3rd-D. The judge who, in the investigation phase, performs any act included in the competences of arts. 4 and 5 of this Code will be prevented from working in the process. (Included by Law No. 13,964, of 2019)
Sole paragraph. In counties where there is only one judge, the courts will create a system of rotation of magistrates, in order to comply with the provisions of this Chapter. (Included by Law No. 13,964, of 2019)
Inappropriate mention of articles 4 and 5: Articles 4 and 5 deal with the competence of the judicial police and the ways in which the investigation is initiated. The reference made by Article 3-D is not mistaken. The guarantees judge performs acts that fall within the competence of the judicial police, and his action takes place on instituted investigations. Thus, the allusion to Articles 4 and 5 is simply inappropriate. More appropriate would be to refer to Article 6 and its subsections.
Impediment of the investigating judge: If the judge performs acts within the jurisdiction of the guarantees judge, he is prevented from acting as an investigating and judgment judge. This is why, in districts where there are up to two judges, considering the 60-day vacation, the guarantee judge must be from another district. The function of judge of guarantees, in this case, will have to be exercised through any communication systems.
Impediment of the investigating judge and succession of laws in time
Rules Relating to the Succession of Laws in Time: There are three methods for regulating the succession of laws in time. The procedural unit, in which ongoing processes are not affected by the new law. Phases, when the new law is not valid until the procedural phase is completed, which can be the postulatory, the instructive, the appeal, etc. And the isolation of acts, where each act is isolated and the new norm will apply to it. The method adopted by the CPP is the latter. Article 2 of the CPP stipulates that the criminal procedural law will apply from the outset, without prejudice to the validity of acts carried out under the previous law. The principle of immediate application means that the criminal procedural norm is governed by the principle of the rule of tempus regit actum, of immediate application or of immediate effect, which means that, while the process is ongoing, the procedural acts carried out under the previous law remain valid, and the new law has immediate application, that is, the process becomes be governed by it. The new law does not produce effects for the past. Worth for the future. There is, however, no impediment to the new law disposing differently from that established in article 2.
The impediment thesis of the current investigating judge:In the case of the guarantees judge, the new law did not specify how the succession of laws would take place over time. Laws and their devices commonly authorize more than one interpretation. The role of the interpreter is to identify which interpretation is contained and authorized by the law and by the system to regulate the possible hypotheses of taking place in terms of facts. The impact of principles on the paid rule is forbidden to throw it to one side or the other. This reasoning, so in vogue, is a violence that is practiced against the law. The principles are already found within the norm, since it, the norm, is a compromise between principles, which are often opposites. What can be done is, discovering more than one command within the norm, intensifying one or another principle, without any being annulled, to choose the command that best serves to regulate specific cases. The interpretation of the present device that the judge who, when the law comes into force, is presiding over the investigation and has exercised, in the past, functions of judge of the guarantees, must be impeded, does not cease to be a reasonable interpretation. But it doesn’t seem right to us. Perhaps because it is not technically correct. However, certainly, for the reason that it is not the most suitable. Adopting it would cause several problems and uncertainties related to the redistribution of processes. And what is critical: in districts where there is only one judge, it would be necessary for the judge of another district to exercise jurisdiction in the process. Would the judge from the neighboring county make periodic trips to the trial district? There are distant regions. It would affect speed. Would the process be processed in the neighboring district? It is not indicated. The jurisdiction would be far from where the fact occurred, from the witnesses, from the accused, from the evidence. In our view, the best interpretation is to enforce the rule ofperpetuation of jurisdiction
Immediate application of the law and absence of impediment by the judge:When the law that created the guarantees system came into effect, the investigating judge who was presiding over the process and who had practiced, in the past, acts as a guarantees judge, was not a guarantees judge for only one reason: because there was no such institute at the time. There is only one way to say that he was a judge of guarantees: transporting the law to the past in order to give that name and that function to the judge who acted there authorizing precautionary and invasive measures. He was not a judge of guarantees because that competence and that function did not exist. Not having been a guarantees judge, there is no impediment to his continuing as an investigation and judgment judge. The right to recognition of the impediment only applies to the accused subject to the bipartite system. And, as only those who were investigated when the law was in force are subject to this system, it does not apply to the current instruction and trial. Enforcing the impediment for those who are subject to the single judgment is to transfer the effectiveness of the rule to the past. There is an offside rule and a competency rule. Neither one nor the other can retroact. The fact of having exercisedfunctions of judge of guarantees is a fact of the past. The new law cannot rescue a past fact to focus on it. The law could predict how the transition would take place, which could even be through the unit and phase systems. It didn’t. The judge who is instructing or judging the process was not, strictly speaking, a judge of guarantees because there was no bipartite system. There was no guarantee judge. There is more: Article 3-D is intended to be in force for the future. See the text: The judge who, in the investigation phase, performs any act included in the competences of arts. 4 and 5 of this Code will be prevented from working in the process . The verbal phrase will be preventedit does not refer to the past, nor to the present. Rather, the reference is to the future. Therefore, it is not just the elements of logical and systematic interpretation that preclude retroactivity; the literal too. In conclusion, at the time the law enters into force, the investigating judge remains competent, including for the trial. As for the judge of guarantees, the duration of the law, he also remains competent. The instruction and judgment judge will be different, which will be determined by the distribution (the guarantee judge cannot be randomly selected in this distribution). A different solution deserves the judge to guarantee the duration of the law in the districts of a single judge. That judge remains competent to act as a guarantee judge; it’s the law. On the other hand, being the only judge in the district, he is the competent judge to instruct and judge the case, because there is no other. What is the reasonable solution to this problem? There seems to be an exotic positive conflict of competence between the judge and himself (he is competent for guarantees and he is the only competent for instruction). In this case, the solution is to give preference to his competence for the instruction, since he is the judge “of the land” (an expression we borrowed from witnesses outside the district), who is close to the facts and evidence. Therefore, when the law is in force, he is prevented from continuing to act as a judge of guarantees. He is replaced by another judge, who takes on the role of guarantee judge, which can be done through the most diverse means of communication. The solution is anomalous as much as the idea of a positive conflict of jurisdiction between the judge and himself is atypical. New institutes, new solutions. What is the reasonable solution to this problem? There seems to be an exotic positive conflict of competence between the judge and himself (he is competent for guarantees and he is the only competent for instruction). In this case, the solution is to give preference to his competence for the instruction, since he is the judge “of the land” (an expression we borrowed from witnesses outside the district), who is close to the facts and evidence. Therefore, when the law is in force, he is prevented from continuing to act as a judge of guarantees. He is replaced by another judge, who takes on the role of guarantee judge, which can be done through the most diverse means of communication. The solution is anomalous as much as the idea of a positive conflict of jurisdiction between the judge and himself is atypical. New institutes, new solutions. What is the reasonable solution to this problem? There seems to be an exotic positive conflict of competence between the judge and himself (he is competent for guarantees and he is the only competent for instruction). In this case, the solution is to give preference to his competence for the instruction, since he is the judge “of the land” (an expression we borrowed from witnesses outside the district), who is close to the facts and evidence. Therefore, when the law is in force, he is prevented from continuing to act as a judge of guarantees. He is replaced by another judge, who takes on the role of guarantee judge, which can be done through the most diverse means of communication. The solution is anomalous as much as the idea of a positive conflict of jurisdiction between the judge and himself is atypical. New institutes, new solutions.
Unconstitutionality of the sole paragraph and alternatives
Unconstitutionality: The sole paragraph of Article 3-D establishes that, in regions where only one judge works, the courts will create a system of rotation of magistrates for the purpose of implementing the guarantees judge. It is incumbent upon the Union to legislate on procedural law ( CF, article 22, item I of the CF ). The Union, the States and the Federal District are responsible for concurrently legislating on procedures in procedural matters ( article 24, item XI of the CF ). It is exclusively up to the Federal Supreme Court, the Superior Courts and the Courts of Justice to propose to the respective Legislative Power the alteration of the judicial organization and division ( article 95, item II, letter “d” of the CF). The device, now under examination, creating a system of rotation of magistrates for the purpose of implementing the guarantees judge, is unconstitutional, as it addresses judicial organization. It is up to the courts to define how the system should be implemented. Evidently, the positions of the central judges of the guarantees must be filled according to the criteria of seniority and merit, and not by free choice.
Alternatives for implementation: There is experience similar to that of the judge of guarantees. In the Department of Police Inquiries of São Paulo – DIPO, judges are responsible for appraising decisions related to precautionary measures and invasive measures. The adoption of this system solves the problem of districts that have only one or two judges, although, in these cases, there is no impediment for the judge of the neighboring district to exercise the function of judge of guarantees, using various means of communication. But this solution could generate several problems related to distribution, including violation of the natural judge principle. On the other hand, it is necessary to consider the critical comment made by Pedro Luiz Cunha Alves de Oliveira and Sergio Rosenthal, in the article The excessive competence of the Juiz das guarantees, published on the Migalhas portal, according to which “a sector with judges exclusively dedicated to examining only inquiries tends to establish automatism, deepen idiosyncrasies, create “jurisprudence” of first instance – such as, for example, exerting greater rigor against certain criminal practice provisionally imputed , before verifying its real existence –, still being able to cause undesirable approximation of judicial police bodies with the judiciary, liable to generate inconvenience”. The writers allude to the DIPO experience in São Paulo. Perhaps the best solution is central guarantees in more populous cities to serve counties with only one or two judges. And in the other counties, a rotation system would be implemented. There is no obstacle in the fact that inquiries are still not made up of electronic records in most states. The acts involved by the guarantee judge are acts of sending and receiving requests and decisions. We examine this theme in the subheadingThere is no need for inquiries or processes to be electronic under the heading Analysis of objections to the guarantee judge’s system , in comments to Article 3-B.
