JUIZ DE GARANTIAS COMO CONCRETIZAÇÃO DO PRINCÍPIO DA IMPARCIALIDADE JUDICIAL

Abstract

The present work aims to examine and question the rule of preventing jurisdiction in Brazilian criminal procedural law, analyzing, in the end, the new institute of the judge of guarantees, as a possible mechanism for maximizing the right to be judged by an impartial judge. The study demonstrates the need to ensure constitutional guarantees in the pre-procedural phase, under penalty of offending the constitutional order. For that, a brief analysis of the constitutional criminal procedural guarantees is developed, and then the text presents ideas about the criminal procedural systems existing in the legal system (accusatory, inquisitorial and mixed), noting the disagreement of the accusatory criminal system proclaimed in the Federal Constitution of 1988 with several infra-constitutional norms of inquisitive character of the Brazilian criminal procedural law. Afterwards, there is a brief study on the police inquiry, specifically on the role of the judge, demonstrating the affront to the principle of impartiality of the judge arising from the prevention and investigative powers of the judge. Finally, an outline of the institute of the judge of guarantees is made, and it is concluded, in the conclusion of the research undertaken, for the necessary modification in the current standards of performance of the judge in the investigative phase, at least, so that this same judge is not preventive to judge the cause.