Imagine that you are the victim of a crime. You are sitting in the courtroom, a few meters away from the attackers. During depositions and interrogations, the pieces don’t line up; Lies appear. His gaze is fixed on the judge, hoping to position himself as a guardian of the truth. Yet he remains completely silent. It is not lack of perception, but interpretation itself that takes away his starring role, as recipient of evidence, and prevents him from investigating more deeply what is being produced before his eyes.
Now, a second example: Your attacker was caught while committing the crime, i.e. actually committing it. Feel good. However, soon after, news arrived of his release. The minutes of the session stated that the Public Prosecution was in favor of the release. The judge disagreed. He explained that the defendant’s freedom would pose a danger to the local community, but stressed that in light of the increasingly accepted interpretation, there was nothing he could do. How could this happen?
How can it be explained that, based on the personal understanding of the Prosecutor, a judge, who has the function of a judge, can no longer decide to arrest a person whom he considers to be a danger to the community and must submit to the non-appealable position of the Prosecutor’s Office? How did this decision leave the hand of the judiciary, which has countless review mechanisms, to be concentrated in the hands of one person, whose statements – even if they were wrong – became final and irrevocable?
Similar cases are not fiction. It is repeated daily in hundreds of court hearings across Brazil, creating an overwhelming sense of helplessness that affects both the victims and the judges themselves. There is a serious and silent flaw in our system, something that needs to be discussed openly by society and the legislature.
What lies behind this paralysis has a name: an extreme, disproportionate, and ever-expanding reading of the “accusatory system.” This system, which aims to ensure the impartiality of the judiciary, by separating the functions of charging, defending and judging, has ended up distorted and grown disproportionately to the point of imprisonment of the judge.
The dysfunction was so evident that it recently gained a nickname – not in the secret corners of the Forum corridor, but on live television, during a high-profile trial in the Federal Supreme Court, when Minister Alexandre de Moraes referred to the figure sought by the defense as a “fern judge”.
The sharp and precise label is not just an exaggeration. It depicts, with surgical precision, the paralysis that actually affects the lives of real people and thousands of experiences in Brazil.
To understand it better, it’s helpful to use a simple analogy: football. On the field, two teams face each other. The judge’s job is to make sure the game is fair, and ultimately determine the winner. The problem is that today they ask the referee in criminal cases to referee the match with his back to the field, and only listen to what the team tells him, without the possibility of delving deeper into providing evidence, let alone consulting the VAR technology.
The cruelest irony, dear reader, lies in the simple fact that all evidence generated in a process is the ultimate recipient of the judge and the courts, who are responsible for using it to reach a fair decision. However, those who are most keen to understand the events end up being exactly those who find themselves trapped when they try to pull the threads of truth. It’s like asking a doctor for a diagnosis but preventing him from examining the patient.
Silencing a judge creates a two-way street that, far from providing protection, fuels injustice. On the one hand, the perpetrator flees because his allegations are not adequately addressed; On the other hand, an innocent person may be convicted, as his defense may turn out to be inadequate, and the judge has no space to intervene forcefully and clarify the facts. The silence that is supposed to guarantee justice actually destroys it.
The point that worries citizens the most, and which we will have a lot to talk about, is the custody hearing. This moment is the gateway to the system, where within a few hours it is determined who represents a danger to society and therefore must remain in prison until a judgment is made on the merits.
And it is precisely at this moment that the distortion becomes more apparent. When the public prosecutor requests, for any reason, the release of a person caught red-handed, the judge, who must make the decision, cannot do anything. Even if, in the eyes of the court, the collection of records reveals a clear and imminent threat to the victim or society, an increasingly uniform understanding prevents a judge from converting an arrest into ex officio pretrial detention — converting a prior detention into preventive — even if the prosecutor’s office requests the adoption of precautionary measures other than imprisonment.
In the current scenario, the decision to grant freedom to an individual lies almost exclusively with the prosecutor, whose position, in the event of release, is final and non-appealable, given the resulting disinterest of the prosecution and defence.
The current situation, which has been established, turns the judge, during detention hearings, into a hostage of the personal understanding of the prosecutor. In the division of functions proposed by the adversarial system, the judicial function remains with the judge. If the Public Prosecutor’s Office supports the release, the one who practically judges it is the Public Prosecutor, as the judge will not be able to do anything, although the function of the judiciary, in dividing the functions of the accusatory system, belongs to the judge.
Every moment we are getting closer to the character of the “Fern Judge”. But we cannot forget that adopting the accusatory system does not mean that the judge becomes an adornment for operations whose primary goal is the search for truth and justice.
By weakening the character of the judge, what is really weakened is justice, which becomes a waiting room for insecurity and impunity.
It is necessary to reconsider the limits of this exaggerated and disproportionate concept attributed to the accusatory system, and return the tools to the judge that allow him to achieve what society expects: justice. After all, which jurisdiction do we want to see at the hearing: one that is passively observing or one that is acting?
It is necessary to restore the judge’s voice so that the judiciary can see, hear and decide fairly. Let’s leave the beauty to the ferns!
- David Dudment Campos Joaquim Pereira is a judge at the Court of Justice of the Federal District and Territories (TJDFT)
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