The persistence of Francisco Campos' inquisitorial bias in the alleged implementation of the judge of guarantees

from the dust we came and in the dust we will remain

Abstract

This study analyzes the pre-existing logic of the supposed installation of a Brazilian accusatory system, based on the STF decision that would authorize the implementation in the country of what is known in other international experiences as a guarantee judge. In Brazil, the way in which the institute was interpreted by the STF served only to feed back into what, in the end, is an inquisitorial system of parties structured based on the inquisitorial bias of Francisco Campos, which governs the code since its publication and remains engraved in the jurisprudence and in a significant part of the authors of the discipline of Criminal Procedural Law. The legal-cultural scenario of the criminal process in Brazil reveals a set of elements that integrate the minds of the procedural actors below their consciousness, called biases, and control their procedural posture, even if they are not aware of them. The research, then, demonstrates that, although the Law can be an exosomatic structure that allows external control over biases, in this case it functioned as reinforcement of the inquisitorial bias in the culture and in the minds of the actors of the Brazilian criminal process. By dealing with an alleged legal error to transfer the competence to receive the complaint to the investigating judge, and not the judge of guarantees, it only further consolidated the prevailing bias in Francisco Campos' logic, that is, it promotes the opposite direction of moving towards the accusatory system, completely rendering unfeasible the subtle attempt to bring the CPP/1941 closer to the constitutionally determined accusatory system.