Juiz das garantias brasileiro: uma análise da irrazoabilidade da suspensão ante a viabilidade concreta de sua implementação

Abstract

Articles 3-A to 3-F inserted in the Criminal Procedure Code through Law no 13.964/19 established the Judge of Guarantees. However, even during the vacatio legis period, the provisions had their effectiveness suspended by a precautionary decision issued in Direct Actions of Unconstitutionality No. 6,298, 6,299, 6,300 and 6,305. The decision in question, the Rapporteur Luiz Fux justified fumus boni iuris and the periculum in mora by pointing out vices of formal and material unconstitutionality in the legislative design of the institute. However, as it was not confirmed whether in fact the defects pointed out would be confirmed when they entered the legal system, the national doctrine was divided between defenders and opponents of the measure. In this sense, the present research verifies whether the grounds used actually justify the suspension of the Judge of Guarantees. For this, the research uses the hypothetical deductive method, through which the Brazilian procedural investigation systems and the impact promoted by the advent of the Judge of Guarantees are approached, followed by the analysis of the dichotomous arguments present in the doctrine about the grounds used in the decision of suspension of the model, and, in the end, the feasibility of implementing the system is discussed by comparing the grounds used in the injunction with precedents applicable to national law. The relevance of the present study is highlighted for the correct execution of the criminal process, in line with fundamental principles that limit state activity.