Mesa Redonda #26 - O que é o Garantismo Processual? Carvalho, Costa, Pereira e Raatz

Name: Mesa Redonda #26 - O que é o Garantismo Processual? Carvalho, Costa, Pereira e Raatz
Uploaded: 2019-05-20T17:15:06.000Z
Duration: 3 h 44 min

Introduction to the Round Table Process

Overview of the Program

The program "Falando de Processo Mesa Redonda" returns after a long break, focusing on interesting procedural law topics.

The show is primarily aimed at podcast listeners but is also available on YouTube and Facebook Watch.

Host and Guests Introduction

Antônio Carvalho introduces himself and the guests for today's discussion on "what is processual garantism."

Eduardo Costa, a federal judge and former president of the Brazilian Association of Procedural Law, shares his background.

Igor Hatz from Rio Grande do Sul expresses excitement about participating in the program and mentions his academic credentials.

Mateus Costa introduces himself as a professor and lawyer with experience in communications within ABDPRO.

Understanding Processual Garantism

Defining Key Concepts

The discussion begins with defining what process means as an institution of guarantee, emphasizing its complexity.

Ambiguity in Terminology

Eduardo highlights that "processual garantism" is often used ambiguously in Brazil, leading to varied interpretations among scholars.

Clarifying Definitions

He explains that "garantismo" combines 'guarantee' with '-ism,' suggesting it refers to doctrines surrounding guarantees within legal contexts.

Distinctions Within Garantismo

Eduardo elaborates that processual garantism can refer to either guarantees within processes or the process itself as a form of guarantee.

Broader Context of Legal Guarantees

He notes that understanding what constitutes a guarantee is crucial for grasping the full meaning behind processual garantism.

Understanding Ferragioliano Guarantees in Legal Context

Overview of Ferragioliano Guarantees

The concept of legal guarantees, as described by Ferragioli, encompasses three main approaches: a normative model, a political philosophy, and a theory distinguishing between 'being' and 'ought to be', validity and effectiveness.

In Brazil, the specific interpretation of guarantees is shaped by authors like Romão Teraroca and Franco Tipriani. This view sees guarantees not just as protections but as integral to the process itself.

Distinction Between General and Specific Guarantees

The Brazilian perspective on guarantees differs from the broader Ferragiolian view; it emphasizes that procedural guarantees are not merely derived from general legal protections but are foundational within their own dogmatic framework.

Here, "guarantee" refers specifically to legal situations that protect citizens from abusive state power rather than being a broad protective measure against offenses.

Epistemological Context

It’s crucial to understand the epistemological context when discussing guarantees; different approaches (like natural law or phenomenology) can also claim to be procedural guarantees but may differ significantly in interpretation.

Traditional views on procedural guarantees focus on constitutional law, asserting that processes serve as freedoms for citizens against arbitrary judicial actions.

Role of Institutions in Guaranteeing Rights

The process is seen as an institution regulated by the Constitution that safeguards individual rights or fundamental freedoms, emphasizing its libertarian connotation.

There is a clear distinction made between how different schools perceive institutions like the Public Ministry; while some see it as a guarantor of rights, others argue it holds power that must be checked by citizen-led protections.

Critique of Institutional Perspectives

The speaker critiques the notion held by some Ferragiolians that institutions protecting rights automatically qualify as guarantee institutions; this perspective does not align with their understanding.

In Brazil's context, there’s concern over potential abuses of power by institutions like the Public Ministry. Thus, there’s an emphasis on developing counter-guarantees against such powers.

Conclusion on Conceptual Differences

The differences in conceptualizing guarantees lead to significant misunderstandings between various schools of thought. Critics often misinterpret each other's premises due to differing epistemological foundations despite using similar terminology.

Clarifying Misconceptions in Legal Discussions

Establishing Semantic Distinctions

The speaker emphasizes the need to clarify misunderstandings surrounding legal concepts to prevent misinformation.

Criticism of lazy arguments that dismiss complex ideas without proper study, particularly regarding comparisons with other legal frameworks.

Understanding Institutional Guarantees

Discussion on the concept of "institution of guarantee" as a means to protect parties from power abuses, focusing on jurisdictional authority.

The process is framed as a safeguard against all forms of power, not just judicial authority, highlighting its broader implications.

Freedom and Legal Process

Introduction of two types of freedom: positive (freedom to act in court) and negative (freedom from interference), linked to due process rights.

Emphasis on the constitutional basis for these freedoms as outlined in Article 5, Section 4, distinguishing it from mere procedural aspects.

The Role of Guarantees in Legal Framework

Importance of non-domination and non-submission within procedural guarantees; invites further discussion among peers present.

Clarification needed for readers about the comprehensive nature of guarantees within legal processes beyond selective interpretations.

Constitutional Foundations and Functionality

Authors often discuss various guarantees but may overlook the intrinsic role of the process itself as a guarantee institution.

Highlights specific constitutional content related to function distribution within legal processes; questions the value of discussing guarantees if foundational principles are ignored.

Historical Context and Development

Acknowledgment that while "guarantee" terminology is established in Spanish-speaking doctrine, it has been adapted uniquely within Brazilian law.

Recognition of significant contributions from international scholars who have faced challenges when advocating for guaranteed rights.

Understanding Procedural Guarantees in Brazil

The Role of the Constitution in Procedural Guarantees

The discussion highlights how procedural guarantees in Brazil are often overlooked, with a focus on the importance of constitutional foundations rather than merely dismissing them.

Emphasis is placed on the Constitution's core principles, particularly individual rights, suggesting that any exaggeration regarding procedural guarantees should be avoided.

Historical Context and Conceptual Challenges

Acknowledgment of the evolution of procedural guarantees as a new framework addressing historical legal institutions, indicating a need for revisiting classical concepts.

A challenge faced by Brazilian legal scholars is defining what constitutes a "process," revealing confusion among practitioners about its fundamental meaning.

Critique of Current Perspectives

The conversation shifts to critique existing views on procedural guarantees, noting that some authors perceive them merely as accessories to material rights rather than essential components.

There’s an assertion that many discussions around process definitions reflect broader historical understandings within jurisdictional theory.

Power Dynamics and Institutional Guarantees

One significant contribution discussed is Eduardo's insight into the relationship between power and guarantees, framing this dynamic as crucial for understanding processes and their functions.

It is clarified that procedural guarantees are not mere tools but vital protections against state power, countering instrumentalist perspectives.

Instrumentalism vs. Non-Instrumentalist Views

The dialogue addresses how some non-instrumentalist authors inadvertently align with instrumentalist views by treating guarantees superficially while promoting a more profound agenda related to power dynamics.

Igor points out that many who claim to support guarantees may actually be masking an underlying belief in process as a tool for exercising authority.

Future Discussions on Instrumentalism

An announcement indicates plans for future discussions focused specifically on instrumentalism and its historical development within Brazilian law.

Equality vs. Freedom in Legal Processes

Eduardo adds a nuanced perspective by arguing that while processes serve as freedoms' guarantee, they also incorporate elements ensuring equality—though he cautions against oversimplifying this relationship.

Judicial Equality and the Role of Law

The Nature of Judicial Equality

The judge does not create equality outside the law; all equality must be derived from legal provisions.

Judges can only dismiss discriminatory criteria if deemed unconstitutional, as creating equality beyond legal boundaries equates to legislative overreach.

Judicial actions should focus on controlling the constitutionality of unequal rules rather than establishing new equalization standards.

Legal Guarantees in Judicial Processes

The judicial process is not inherently a guarantee of equality but is influenced by various micro-guarantees that may or may not align with constitutional principles.

Specific examples include differentiated deadlines for government entities, which raise questions about their constitutionality as rules of inequality.

The Principle of Legality in Procedural Guarantees

Emphasizing the importance of legality within procedural guarantees, highlighting that due process must adhere strictly to established laws rather than sublegal or extralegal interpretations.

Legal definitions are rooted in democratic principles, where power emanates from the people and is exercised through representatives, including judges who serve as non-elected officials.

Sovereignty and Limitations on Judicial Power

The principle of popular sovereignty dictates that no judicial action can occur outside the will expressed through legislation, ensuring checks on judicial authority.

This framework prevents any form of aristocratic power within the judiciary, reinforcing its role as a representative body aligned with democratic values.

Challenges to Understanding Legal Principles

There is a notable lack of discourse surrounding the principle of legality in Brazilian legal education compared to other procedural principles like natural justice or efficiency.

Misconceptions about legality have led to its perception as merely a liberal constraint rather than an essential component for upholding rule-of-law principles within state formation and conflict resolution processes.

Legalidade e Garantismo Processual

A Importância da Legalidade

A legalidade é um princípio fundamental que tem sido maltratado, apesar de sua construção histórica significativa. É crucial para a tomada de decisões.

No Brasil, há uma concepção errônea de que os direitos fundamentais se sobrepõem uns aos outros, onde os direitos de segunda geração revogam os de primeira.

Críticas ao Garantismo Processual

O garantismo processual é criticado por defender que o juiz deve ser "boca da lei", enfatizando a importância da legalidade em vez do ativismo judicial.

A discussão sobre legalidade está interligada à igualdade das partes no processo, que deve ser abordada politicamente e não apenas judicialmente.

Flexibilidade do Procedimento Judicial

Uma abordagem frouxa da legalidade permite que juízes ignorem prescrições legais para criar condições de igualdade, assumindo um papel legislativo indevido.

Há uma tendência em subtrair o conceito de devido processo legal em favor do "processo justo", o que pode comprometer as garantias individuais.

Limites na Interpretação Judicial

O procedimento é essencial para garantir direitos contra abusos de poder; quando juízes moldam procedimentos, isso pode levar à perda dessas garantias.

Defensores da legalidade não acreditam que juízes devem decidir casos com base em interpretações prévias fixas; a interpretação deve ter limites claros.

Contexto Histórico do Juiz como "Boca da Lei"

A ideia do juiz como "boca da lei" possui um contexto histórico específico relacionado ao poder judiciário na França e suas implicações sobre propriedade.

Associar o garantismo processual à ideia simplista do juiz como "boca da lei" demonstra falta de compreensão ou uma crença infundada nas críticas ao garantismo.

Interpretative Methods and Legal Guarantees

The Complexity of Interpretative Methods

The discussion highlights the intricate relationship between interpretative methods and procedural guarantees, emphasizing that no scholar studying Procedural Guarantees can ignore the advancements in Hermeneutics post-Reidiger and Gadamer.

A distinction is made between defending legality and advocating for a literalist interpretation, which is deemed misguided; proponents of guarantees are developing theories around implicit rights that exist beyond explicit legal texts.

Implicit Powers vs. Implicit Guarantees

There is a critique of hermeneutic approaches that amplify state power without checks, contrasting this with the lack of development in theories surrounding implicit guarantees within Brazilian constitutional law.

The speaker notes the rarity of literature on implicit guarantees in Brazil compared to discussions on implicit powers, suggesting a skewed focus towards empowering authority rather than safeguarding rights.

Legality as a Protection Against Abuse

Critics often misunderstand that legality itself serves as a safeguard against power abuse; it emanates from the people and legitimizes judicial authority.

The concept of legality discussed here transcends 19th-century positivism, aligning instead with principles established by Brazil's 1988 Constitution.

Fair Trial Principles

The notion of a fair trial is explored through Igor's work, which engages with Carlos Timit’s ideas about due process as an essential framework for jurisdictional integrity.

Brazilian doctrine views due process primarily as a set of principles ensuring fairness within judicial proceedings but acknowledges ongoing debates regarding its application.

Constitutional Framework and Critique

There’s an emphasis on overcoming outdated notions of rule-of-law in favor of recognizing constitutional values as normative guides discovered by judges.

The argument posits that to challenge the constitution's foundational role would require declaring it unconstitutional, which contradicts fundamental legal principles upheld by current jurisprudence.

Conclusion: Defending Constitutional Integrity

Those opposing this perspective may inadvertently support unconstitutional viewpoints; thus, there exists an argumentative burden to uphold constitutional fidelity in legal discourse.

Understanding Legal Positivism and Judicial Interpretation

Critique of Judicial Perspectives

The speaker challenges proponents of a fair process by asking for constitutional references to support their views, emphasizing the lack of understanding in legal theory among critics.

A distinction is made between different forms of positivism, particularly criticizing those who conflate traditional positivism with exegesis, which has evolved over time.

The speaker suggests that discussing the School of Exegesis or Free Law Movement could detract from the main topic but acknowledges its importance in understanding legal positivism.

Misunderstandings in Legal Theory

Critics are portrayed as lacking knowledge about legal norms and interpretation theories, suggesting that deeper study into classical texts would broaden their perspectives.

The notion that judicial power should be limited is emphasized; the speaker argues that this limitation is often misunderstood or rejected by those advocating for empowered judges.

Jurisprudence vs. Legislative Text

There’s a critique of those who label opponents as advocates for "judges bound by law," while they themselves support a jurisprudential approach that can also lead to ambiguity and vagueness in legal texts.

The discussion highlights how precedents created by courts can be just as problematic as legislative texts due to inherent ambiguities, questioning the belief in judicial infallibility.

Psychological Insights on Legal Doctrine

The speaker describes certain modern doctrines as "infantilized" or "spoiled," arguing that they reflect an inability to accept external realities imposed by law.

This perspective suggests that postmodern theorists reject established laws because they do not align with their ideals, leading them to propose unrealistic alternatives instead of engaging with existing legal frameworks.

Distinction Between Types of Law

A critical question posed during academic discussions revolves around whether a thesis pertains to existing law (lege lata) or proposed law (lege ferenda), indicating a common confusion among scholars regarding these concepts.

The speaker notes how some scholars construct ideal models without recognizing their impracticality within real-world applications, further complicating discussions on legal theory.

Discussion on Legal Doctrine and Judicial Roles

The Role of Doctrine in Brazilian Law

The legal doctrine in Brazil has taken on a role that is not traditionally its own, attempting to construct legal norms rather than merely interpreting them.

This tendency towards general principles within procedural law has been criticized for undermining the autonomy of civil law in Brazil, as it positions doctrine as a quasi-legislator.

Critique of Judicial Authority

There is a concern that some legal scholars elevate the authority of judges and higher courts to that of legislators, leading to an uncritical acceptance of their decisions.

This phenomenon results in support for judicial interpretations that may violate established laws, reflecting a troubling trend where political influence encroaches upon scientific inquiry.

Political Influence on Judiciary

Individuals with political aspirations often occupy judicial roles without relinquishing their ambitions, which raises questions about their commitment to impartiality.

The discussion highlights the presence of individuals who are more suited for creative fields than for legal practice occupying significant judicial positions.

Recent Judicial Decisions and Their Implications

A recent ruling by Minister Neff Cordeiro regarding former President Michel Temer's case emphasized that judges should not see themselves as heroes combating crime but rather as impartial adjudicators.

This perspective challenges the notion of "strong" or "activist" judges within both criminal and civil contexts, suggesting a need for balance based on constitutional principles.

Mythology Surrounding Judges

The conversation introduces the mythologization of judges as heroic figures endowed with extraordinary powers to achieve justice, which can distort their actual role within the legal framework.

It critiques this idealized view by arguing that adherence strictly to legality may prevent judges from achieving true justice or fulfilling social objectives.

Discussion on Judicial Roles and Impartiality

The Role of Judges in Different Legal Contexts

The speaker discusses the historical context of judges, referencing Nazi judges and their intermediary role through FIRA, suggesting that film served as a people's oracle.

A metaphor introduced by Guilherme Lonelli and Jorge Zabundi critiques Nalini's views on judicial roles, particularly distinguishing between different types of judges.

The speaker questions the justification for differentiating between "inactive" penal judges and "activist" civil judges, arguing that such distinctions lack constitutional support.

Constitutional Guarantees in Judicial Processes

Emphasizes that the Constitution does not differentiate between civil or penal processes when discussing due process rights; all processes are fundamentally about protecting individual freedoms.

Asserts that procedural guarantees should be uniform across legal branches, highlighting that the nature of material law should not affect procedural protections afforded to citizens.

Impartiality Across Judicial Domains

Discusses the essential guarantee of impartiality for all judges regardless of their jurisdiction (civil, labor, penal), asserting equal standards must apply universally.

Critiques current procedural codes for creating separate lists of grounds for judicial bias; argues this fragmentation undermines constitutional principles regarding impartiality.

Issues with Procedural Fragmentation

Points out inconsistencies in how different legal codes handle causes for suspension and impediment, questioning why some grounds are treated more severely than others without clear justification.

Highlights the absurdity in treating certain biases as more significant based solely on procedural context rather than their impact on justice delivery.

Conclusion: A Unified Approach to Judicial Process

Concludes that judicial processes should be viewed holistically as protective mechanisms against state power rather than fragmented by type or area of law.

Reiterates that issues like impartiality are fundamental constitutional matters transcending specific legal procedures; thus they should not be compartmentalized into narrow categories.

Judicial Roles and Procedural Distinctions

The Complexity of Judicial Roles

Discussion on the issues arising from civil and criminal judges, highlighting the long-standing complexities that have persisted for decades.

The challenge of distinguishing between civil and penal judges, emphasizing the limitations placed on civil judges compared to their penal counterparts.

Inconsistencies in Legal Doctrine

Critique of the Brazilian doctrine on administrative improbity, noting its peculiarities and inconsistencies when compared to other legal frameworks.

Exploration of the concept of "guarantee" in penal law versus civil law, stressing that penal judges must protect individual freedoms while civil judges deal with property rights.

Judicial Impartiality Concerns

Examination of how judicial roles can lead to a breach of impartiality, particularly when judges act in favor of predetermined interests rather than maintaining objectivity.

Highlighting contradictions within judicial arguments regarding the roles of civil and penal judges, questioning their ability to maintain consistent standards.

Evolution of Procedural Law

Acknowledgment that procedural language has become entrenched over time; however, there is still a need for clarity regarding differences between various types of legal procedures.

Historical context provided about common procedural structures across different legal domains (civil, criminal, labor), indicating minimal distinctions primarily related to material law.

The Nature of Judicial Procedures

Description of standard judicial procedures divided into phases: postulation, instruction, structuring, and decision-making.

Argument against the myth that distinguishes between activist and guarantee-oriented judges; both roles are essential yet often misunderstood within doctrinal studies.

Focus on Constitutional Guarantees

Emphasis on how procedural studies have historically focused more on constitutional aspects rather than purely procedural elements in criminal law.

Noting that defense attorneys in criminal cases prioritize individual liberties while also navigating broader constitutional guarantees inherent in legal processes.

This structured summary captures key discussions from the transcript while providing timestamps for easy reference.

Understanding the Role of the Constitution in Procedural Law

The Influence of the Constitution on Procedural Models

The authors analyze how the Brazilian Constitution establishes procedural law, noting that the Brazilian Code of Criminal Procedure, inspired by Italy's Fascist code from 1941, retains inquisitorial elements.

Civil proceduralists focus primarily on the code itself rather than its constitutional contributions, leading to debates about changes introduced by the 2015 Code.

There is skepticism regarding whether infra-constitutional legislation can alter a constitutionally established model, raising questions about cooperative and participatory models not explicitly found in the Constitution.

Exploring Guarantees in Procedural Law

The discussion transitions to "guaranteeism," emphasizing its role in protecting defendants or weaker parties within legal proceedings.

It is clarified that both plaintiffs and defendants hold rights under macro guarantees of due process; guaranteeism is not solely for defendant protection but applies broadly.

Balancing Rights Between Parties

Both parties (plaintiff and defendant) are entitled to protections during legal processes; neglecting fundamental guarantees can harm either party's interests.

The importance of maintaining fairness in judicial proceedings is highlighted, as violations can lead to unjust outcomes for either side.

The Role of Public Prosecutors

Although public prosecutors serve as state representatives, they also have autonomy and must uphold impartiality while ensuring fair trials for all parties involved.

The prosecutor’s role includes advocating for balanced justice while respecting individual freedoms within legal frameworks.

Distinguishing Between Freedom and Release

A critical distinction is made between "freedom" and "release"; due process ensures freedom rather than merely guaranteeing acquittal or release from charges.

Critique of Common Procedures

There’s a critique regarding common procedures being designed primarily for defendants' protection without addressing material equality between parties.

This highlights an ongoing debate about whether procedural laws adequately ensure equal treatment under formal conditions versus actual material equality.

Understanding the Role of Guarantees in Legal Procedures

The Construction of Procedural Guarantees

A procedure was developed for the author to counterbalance a previously established one for the defendant, emphasizing that guarantees are constitutional and not meant to favor either party.

The focus is on upholding constitutional guarantees to ensure a democratic procedural environment, contrasting with views that suggest guarantees only protect defendants.

Misinterpretations of Guarantee Principles

The concept of guarantee involves limiting power rather than favoring one side; this is evident in labor disputes where the employee is often seen as the author.

There are distortions when judges show partiality towards one party, which undermines their role and leads to biases against defendants or executors.

Addressing Inconsistencies in Legal Perspectives

Claims that guarantees support one side are inconsistent; they actually challenge biased judicial behavior, ensuring proper burden of proof is placed on claimants.

The principle asserts that if a claimant fails to prove their case, it should be dismissed, reinforcing fairness in legal proceedings.

Stigmatization of Legal Representation

There's a dangerous narrative labeling lawyers as defenders of criminals or fraudsters based solely on their representation roles, which misrepresents the essence of legal advocacy.

Reflections on Personal Experiences and Academic Growth

Participants express gratitude for engaging discussions about procedural law and reflect on personal journeys through academic shifts from instrumentalism to guarantee-focused perspectives.

One speaker shares how exposure to new ideas transformed their understanding during doctoral studies, highlighting collaborative learning among peers dedicated to these topics.

Closing Remarks and Future Discussions

Participants express joy in discussing legal processes early on a Saturday morning, hoping future programs will help others avoid biases inherent in traditional instrumentalist views.

What is Procedural Guaranteism?

Introduction to Procedural Guaranteism

The speaker humorously compares discussing procedural guarantees to a support group, emphasizing the overwhelming nature of instrumentalist decisions faced daily.

The BD Promas initiative aims to promote a new line of thought regarding procedural guarantees, challenging traditional views in Brazil.

Misconceptions about Procedural Guaranteism

There is a need to demystify the criticisms surrounding procedural guarantees, as they are often misrepresented and misunderstood.

The program has effectively highlighted these misconceptions, providing clarity on what procedural guarantees truly advocate.

Acknowledgments and Guest Introductions

Special mention of Eduardo (Edu), who has been a recurring guest on the show; this episode marks their first focused discussion on procedural guarantees.

Edu expresses gratitude for the revival of the podcast and acknowledges Antonio's journey within BD Pro, highlighting his rise through various roles due to competence.

Intellectual Honesty in Legal Education

The importance of intellectual honesty is emphasized; it’s rare for individuals with long careers in law to admit past errors in understanding legal processes.

Acknowledging previous misconceptions about legal processes requires courage and integrity, especially when confronting established beliefs.

Conclusion and Resources

The episode concludes with an invitation for listeners to explore additional resources on procedural guarantees available online.

Regular updates on procedural guarantees will be provided through articles published every Monday at Importo Direito, featuring contributions from various experts.