DIRECT ACTION OF UNCONSTITUTIONALITY 1570
RAPPORTEUR : JUSTICE MAURÍCIO CORRÊA
DECISION DATE : FEBRUARY 12, 2004
Subject: Due Process of Law and Evidence Gathering by Judges
The Attorney General of the Republic filed a direct action of unconstitutionality against article 3 of Law 9034/95, which conferred judges with the attribution to personally carry out investigation processes and gather evidence in prosecutions related to criminal organizations, when there exists a possibility of violation of secrecy.
Does the personal involvement of judges in gathering evidence with the purpose of ensuring rigorous court secrecy on classified fiscal and electoral data violate the principle of due process of law?
The Full Court by majority found a violation of due process based on the understanding that the personal gathering of evidence impairs the judges’ function in that it undermines his impartiality in the jurisdictional adjudication. There was one dissenting vote, which stated that the active participation of judges in the search of truth in exceptional circumstances was constitutional.
Full text of the decision in Portuguese