O Panorama da imparcialidade no processo penal brasileiro: a imprescindibilidade do juiz das garantias para a redução da crise identitária da jurisdição penal

Abstract

The present study aims the analysis regarding to the crisis of the judge’s impartiality in criminal proceedings, precisely the debate about the (un)necessary implementation of the judge of the guarantees, introduced in the Brazilian Legal System through the Lei nº. 13.964/2019, as a method in order to intensify the protection of constitutional procedural guarantees and reduce the inquisitorial permeability that remains among brazilian criminal justice system. Therefore, in order to develop this paper, it was required to define the criminal procedure systems and its regents principles, identifying which one of them was embraced by the Constitution of the Federative Republic of Brazil of 1988 and by the Criminal Procedure Code of 1941. As a result of the divergence between CPP and CRFB/88 about the informative principle inserted in criminal justice structure, it was explored how much this legislative incongruity instigates the judge’s exit from the impartial third party, considering that the procedure law itself assignes both instructive and investigative powers to the judge. Thereby, by exploiting social psychology theories, the paper reaches to exam the pre-judgements in regard to the evidence management by the judge, inquiring, afterwards, according to the perspective of guarantor epistemology by Ferrajoli, which damages can be potentially reduced by inserting the judge of guarantees within the brazilian criminal procedure system. In order to develop this analysis, were applied the literature and documental review metodologies, based on specific legislation codes, juridical doctrines, scientific articles and jurisprudence from International Courts and Brazil Superior Courts of Justice. Finally, it was recognized the essentiality of implementing the role of the judge of the guarantees inasmuch as it is a way of preservation the jurisdictional impartiality and to the accusatory system fortification within the brazilian criminal procedural order.