In summary, the innovation brought by Law No. 13.964 / 2019 regarding the figure of the “judge of guarantees” concerns the designated magistrate.
Minister Luiz Fux, in the decision in a Precautionary Measure in Direct Action of Unconstitutionality 6,299 / DF, suspended, for an indefinite period, the effectiveness of the implementation of the “judge of guarantees”; the amendment of the sentencing judge who found evidence declared inadmissible; the change in the procedure for filing the police inquiry; release from prison for failure to hold a custody hearing within 24 hours; contemplating the precautionary requests made in ADI’s 6,298, 6,299, 6,300 and 6,305, which, among other aspects, challenge the wording added to the Code of Criminal Procedure with regard to the “judge of guarantees”.
In summary, the innovation brought by Law No. 13.964 / 2019 regarding the figure of the “judge of guarantees” concerns the designated magistrate, according to the rules of the judicial organization of the Union, the States and the Federal District, specifically to supervise and preside over investigations , ensuring the rights of investigated and defendants in the pre-procedural phase, that is, exercising control over the legality of the criminal investigation, different from that responsible for issuing the sentence.
Initially, it is important to bring one of the premises used by the Reporting Minister to establish the position contained in the decision, particularly regarding the STF’s competence to “affirm what is constitutional or unconstitutional, invariably from the perspective of the 1988 Charter”, differentiating itself therefore, the legislative and executive functions, because, according to Minister Luiz Fux “it is not for the STF to make an eminently political judgment of what is good or bad, convenient or inconvenient, appropriate or inappropriate”.
The decision regarding the “judge of guarantees” considered the probability of the right to be evident from the formal unconstitutionality (art. 96, CF / 88), resulting from the legislative initiative of the Judiciary for rules of judicial organization and material unconstitutionality, related to the requirement of previous budget allocation (art. 169, CF / 88) and the autonomy of the Judiciary (art. 99, CF / 88) in the wording of the contested rules, whereas the risk in delay was linked to the “strong probability damage to the functioning of criminal justice, with irreversible effects, especially if the judgment on the merits results in the declaration of unconstitutionality of some or all provisions ”.
The Rapporteur Minister argued that despite the reasoning that the contested provisions would have the nature of general procedural laws that divided the powers between magistrates in the investigation and criminal procedural phases, “the creation of the guarantee judge not only reformed, but also refuted the process Brazilian criminal law and directly and structurally alters the functioning of any criminal judicial unit in the country ”, therefore, the classification of the standards questioned as having“ materially hybrid nature, being both a general procedural rule and a judicial organization rule ”.
Formal unconstitutionality is related, in this sense, to the fact that “the division and organization of judicial services is materially altered to such a level that it demands a complete reorganization of the country’s criminal justice”, highlighting the “risk of the operation of justice Brazilian criminal law collapse ”, so that Articles 3-A and 3-F of Law No. 13.964 / 2019 are predominantly constituted by rules of judicial organization, with a legislative initiative of the Judiciary (art. 96, CF / 88 ).
Material unconstitutionality, in turn, is associated with “the lack of budgetary allocation and previous impact studies for the implementation of the measure and the impact of the measure on the efficiency of the Brazilian mechanisms to fight crime”, violating, according to the Reporting Minister, the articles 169 (previous budget allocation for expenses incurred by federative entities) and 99 (budgetary autonomy of the Judiciary), of CF / 88, in addition to article 113 of the Transitional Constitutional Provisions Act, with the requirement to estimate the budgetary impact and because the implementation of the “judge of guarantees”, also according to Minister Luiz Fux, “causes a major budgetary impact on the Judiciary, especially with the displacement of magistrates, the necessary increase in procedural systems and solutions for related information technology, restructuring and redistribution of human and material resources ”.
Finally, it should be noted that Minister Luiz Fux’s decision to suspend the devices was also based on a cautionary judgment to allow “the appropriate collection of information from the interested authorities, the amicus curiae’s broad participation, and, in due course, the holding of public hearings for the democratic participation of civil society ”.
By: Wilson Sales Belchior
Source: ClickJus
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