The Judiciary

The judge is a member of the Judiciary who performs their function independently, adjudicating only according to the Constitution of the Federative Republic of Brazil and its laws. To exercise their responsibilities, they have guarantees of tenure, immovability, and irreducibility of earnings. Such guarantees aim to provide citizens with an impartial Judiciary that is free from political pressures.

Throughout the criminal process, various judges may intervene: the judge of knowledge, the execution judge, judges who act on appeal, named appellate judges, or in the case of Superior Courts, Ministers.

The judge of knowledge operates during the inquiry, instruction and judgment phases. Only in some locations will the judge overseeing the investigation differ from the judge participating in the instruction and judgment, as in São Paulo, where the Court of Justice created the DIPO. The Anti-Crime Law sought to create the guarantor judge (Law 13.964/19), but this provision was suspended by the Federal Supreme Court. Thus, generally, the judge to whom the inquiry was distributed will be the same presiding over the instruction and judgment phase. The inquiry phase is chaired by the police authority, with external control from the Public Ministry, or in some cases, chaired by the Public Ministry itself should it establish a criminal investigative procedure. Some acts, because they may affect citizens' fundamental rights, must necessarily be performed or authorised by the judge. This includes search and seizure, breaking of bank secrecy, and wiretapping, among others, as they involve the application of a coercive measure. The judge's mission is to ensure that when these acts are performed, fundamental rights are not jeopardised, or if they are, it is justified by the investigation and only to the strictly necessary extent.

During the instruction phase, the instruction judge's mission is to verify if the presented complaint or criminal accusation meets legal requirements. For this, they will analyse the evidence gathered during the inquiry phase, as well as any other evidence they deem necessary or that is now presented and considered relevant. Then, it's their responsibility to schedule the instruction, debates, and judgment hearing, which is chaired by them and attended by various participants in the process. At the end of the debate, the judge who chaired the instruction decides whether or not to convict or acquit the defendant.

• If the judge decides to reject the complaint or criminal accusation, the defendant will not go to trial. This decision can be changed through an appeal presented by the Public Ministry or the assistant.
• If they decide to accept the complaint or criminal accusation against the defendant, the latter will go to trial. There is no legal provision for appealing this decision. However, the filing of habeas corpus is always possible.

Upon receiving the case, the judge must schedule the hearing, summon the defendant and notify all those who should participate. They have two main functions:

Firstly, presiding over the hearing. It is the judge's responsibility to direct the proceedings, ensuring they proceed orderly and disciplined, that evidence is presented, and that the process participants can examine and question it. If vexatious questions are formulated or if there are attempts against the dignity of the victim or witness, they should be addressed to the judge, as omission can lead to charges of institutional violence.

Secondly, deciding, based on the presented evidence, whether the defendant is convicted or acquitted and, in case of conviction, the penalty to be applied. If any compensation claim has been filed, they must also decide on it. It is the judge's responsibility to write the sentence, read it publicly in the courtroom on the scheduled date, and explain it to the process participants, notably the defendant and the victim if present. In some cases, the judge does not make the decision on the spot and calls the records for conclusion. In this case, the sentence will be published in the registry, becoming public.

Judges have a law degree and have passed a public competition of tests and titles for investiture in office. Afterwards, they also completed an adaptation course with the Magistracy School of their State or Region (in the case of federal judges).

If you believe that a judge has disregarded your rights, you may bring this to the attention of the local magistracy's Corregidor or the National Council of Justice.