Judicial Independence and Impartiality in Contemporary Brazilian Criminal Procedure

Abstract

Recent data from the World Justice Project Rule of Law Index indicate that while the Brazilian Criminal Justice system is independent, it is also discriminatory and lacks impartiality. To better understand this diagnosis, this study: (i) analyzes the meaning of judicial independence and impartiality through a review of literature and jurisprudence from international courts; (ii) examines the Brazilian legal model in light of the criteria established by international courts for assessing independence and impartiality; and (iii) highlights problematic aspects of the Brazilian legal framework that contribute to the current status quo. The study concludes that: (i) Brazil does, in fact, have judicial independence; (ii) this independence has been misused through creative interpretations and judicial activism; (iii) in Brazil, impartiality functions more as an aleatory duty for judges rather than a guaranteed right for citizens; (iv) the dominant Brazilian jurisprudential interpretation of suspicion and impediment hypotheses as numerus clausus is not admissible; (v) the country’s inquisitorial legal model steers judges away from impartiality and towards partiality; (vi) Brazil requires a new criminal procedure code; (vii) creative interpretations and judicial activism reinforce conservative elements of the inquisitorial criminal procedure, often acting against new legal reforms; and (viii) discrimination extends beyond the legal framework, meaning that even legislative changes may not be sufficient to fully address the issue.