What is the role of the guarantees judge established in the Anti-crime package?

Criticized by the Minister of Justice, the measure is intended to divide the work between two judges and is defended as a mechanism to prevent biased decisions

Estátua da Justiça. Foto: Gil Ferreira/SCO/STF

Approved by Congress and signed into law by President Jair Bolsonaro on December 24, 2019, the “Anti-Crime Package” drafted by the Minister of Justice and Public Security, Sérgio Moro, received both cuts and additions to its original version. One of the points added to the text during its passage on the Lower House of Congress and maintained by the president was the figure of the Guarantees Judge. 

The amendment, proposed by Congresswoman Margarete Coelho and Congressman Paulo Teixeira, determines a division of tasks between two judges in the same case. One will be responsible for the decisions in the investigation phase (the guarantees judge) and another for the first instance judgment and sentence. 

Sérgio Moro, who opposes the creation of this new position despite its acceptance by the president, said on Wednesday, January 15, on his Twitter account that “you can’t remove from the judgment a judge who oversaw all the fact-finding and who understands the case just because he had contact with some illicit evidence that he excluded from the case”.

The measure is defended as a mechanism to prevent biased decisions. Moro himself, a former judge from the Operation Car Wash corruption investigations, has been accused of not being impartial after the site The Intercept Brasil leaked messages he exchanged via Telegram with members of the Public Prosecutor’s Office.  

The dialogue revealed a possible alignment between the former judge and prosecutors in the investigation and conviction of certain defendants. Without the presence of a guarantees judge, Moro was responsible for investigating and sentencing Operation Car Wash cases. 

According to Gabriel Sampaio, coordinator of the program to Combat Institutional Violence at Conectas, the presence of a guarantees judge strengthens the democratic process and prevents the criminal justice system from being used as a tool of oppression against the most vulnerable in society. 

According to Sampaio, the Brazilian State tends to abuse power and its target has a very well-defined class and race, which is why it needs to be monitored. “Black people from the poor urban outskirts are quickly labeled as convicted criminals in these investigations, so assuring their rights is more difficult. Because of this, mechanisms that guarantee more control of judicial activity are fundamental and prevent the criminal justice system from being used as a tool of oppression against this population,” he argued. 

 Implementation

Following the approval of the measure, the CNJ (National Justice Council) set up a working group to study its implementation. The Committee should present a proposal by January 15 and the Law, in theory, should come into full effect on the 23rd of the same month.

 In a ministerial order, Chief Justice Dias Toffoli extended the working group’s deliberation period and suspended the implementation of the guarantees judge for 180 days through a temporary injunction granted in cases questioning the measure.

 According to critics, one of the problems of implementing the new position is the fact that, according to data from the CNJ, 20% of the judicial districts in Brazil have only one judge. In practice, this could result in more spending by the justice system.

 But Gabriel noted that the issue has more to do with administration than budget. “It may not be necessary to hire more judges. One possible administrative solution is a rotation of judges, without this increasing their workload. From now on, judges will be able to handle more cases but only be responsible for one phase of them, not the whole thing,” he explained.

Background

 Before the figure of the guarantees judge was included in the Anti-Crime Package, the creation of the position was already being discussed as part of the new Code of Criminal Procedure proposed by the Senate in 2009. This bill is currently pending in the Lower House of Congress and is intended to update the Code, which dates back to 1941.

 The European Court of Human Rights, a body similar to the IACHR (Inter-American Commission on Human Rights), has also adopted and recommends this division.