The introduction of the guarantee judge in Brazil and the electronic police inquiry

Abstract

A “judge of guarantees” is a magistrate who acts only in the investigation phase, assessing the legality of the acts and deciding personal and real precautionary measures. Its adoption seeks to avoid psychological contamination of the magistrate, who will judge an eventual process. Introduced in Brazil by Law 13.964/2019, it is being challenged in four direct actions of unconstitutionality. In a preliminary decision, minister Fux accepted the intention to suspend the rules included in the Code of Criminal Procedure, for an indefinite period. Among them, art. 3º-D, which proposes the creation of a system of rotation of magistrates in the counties where only one judge works, as a solution to make the presence of the “judge of guarantees” feasible in the interior of the country. The central argument for this decision was the undue interference of the Legislative Power in the budgetary autonomy and self-management of the Judiciary, added, both to the high cost of hiring new magistrates, prosecutors, police officers and public defenders, as well as the routine expenses with daily physical displacement of these professionals. This article aims to present the adoption of the electronic police inquiry as a mitigation for the costs of implantation of the “judge of guarantees” in Brazil, neutralizing the discussion of the constitutionality of art. 3rd-D in the Federal Supreme Court.