DUE PROCESS OF LAW, IMPARTIALITY OF JUDGES AND THE SEARCHING FOR TRUTH IN CRIMINAL JUSTICE: IS COEXISTENCE POSSIBLE?
Denise Neves Abade[*]
ABSTRACT: The so-called search for truth in criminal justice is traditionally defined as a principle for some legal systems – including in Brazilian experience, even after the changes brought to Criminal trial by Democratic Constitution. According to this understanding, one of the basic purpose of a trial is the determination of truth: there would be a duty for the judge to seek evidence when he/she understands that those presented to him are insufficient for the reconstruction of the historical truth of the facts.
However, it is proposed here to critically analyze the concept and the inevitable paradox that is the coexistence of the "search for truth" with the in dubio pro reo and presumption of innocence principles, which are undoubtedly pillars of the due process of law and assured by international human rights treaties.
KEYWORDS: Criminal Justice System; due process of law; presumption of innocence; accusatorial system; searching for truth; human rights in criminal proceedings
I. Introduction: the purpose of the article
The aim of this article is to analyze the so-called “truth-seeking function” of the Criminal Process facing the guarantees of the due process of law, focusing in Brazilian experience.
The premise for those who claim that the searching for truth is the basis and guide for criminal proceedings has its historical roots in the inquisitorial system, one of the three main systems in which the criminal process is presented, alongside the accusatorial model and the mixed model. In that vision, all the players in the criminal courtroom - defendant, prosecutor and judge - seek the same purpose: the “real truth”, to which all must contribute
But how can we reconcile the searching for real truth with the due process of law, facing, in most legal orders, the presumption of innocence, the prohibition of self-incrimination and the right to silence? Is it possible to adopt the searching for truth as a principle - and would such a "principle" be compatible with the fundamental rights that must be preserved?
Also, taking into account that a legal principle constitutes a nuclear commandment of a system; a fundamental provision that radiates on different norms composing their spirit and serving as a criterion for its exact understanding and intelligence, how valid is it to say that the search for truth defines the whole logic of the criminal procedural system, specifically in Brazil?
It is understood here that the searching for truth violates fundamental rights, being repelled by the constitutional and guaranteed criminal process in Brazilian system. For this reason, the contemporary criminal process cannot maintain it nor advocate it.
So, it is not correct to conceptualize the criminal process as an instrument for reaching the truth of the facts. It is, however, an instrument for the realization of the law, its demands and purposes - never forgetting that from the concept of criminal procedural law we deduce its purpose in a Democratic State: apply the criminal law to the specific case, preserving the full exercise of the fundamental rights and guarantees provided for in the Constitution.
II. Brief notes on criminal procedural systems
Since antiquity, criminal proceedings have basically come under three distinct systems known as (i) accusatorial system, (ii) inquisitorial or inquisitive system, and (iii) mixed system.
What distinguishes the systems is the choice adopted by the law on (i) who prosecutes, (ii) the role of the judge and (iii) the presumption of innocence and the rights of the defendant.
In the inquisitorial system, the functions of both prosecution and judgment are played to the same structure or agent. The defendant is the object of the trial, and must collaborate to obtain the truth.
In the accusatorial system, separate structures are responsible for accusing and judging, and the defendant relies on the presumption of innocence, being subject of rights.
In the mixed system, there is an inquisitorial instruction, and then an accusatorial trial, with the judge still participating in the probative production, complementing the prosecution activity.
Prior to the consolidation of the International Protection of Human Rights in the second half of the twentieth century, the adoption of one or another procedural system derived only from the political system adopted by the Constitution of each State. At present, International Human Rights treaties and their control bodies determine the adoption of a due process of law, in which the defendant is subject of rights, not object of the process.
A. Accusatorial system
The accusatorial model predominated during Antiquity in the Greek and Roman civilizations until the Middle Ages, declining from the twelfth century when the model based on the Inquisition of the Catholic Church came to be considered dominant and surpassed the accusatorial model. In its origins, it was practiced by popular courts, whose verdicts did not need motivation.
Their rescue and ascension occurred after the Constitutional State's consolidation and with the contemporary acceptance of the internationalization of human rights, which enshrined the concept of due process of law and the fundamental rights of individuals subject to criminal proceedings. The new Constitutional State and the notion of social constitutionalism also endorse criticism of the limiting view of fundamental rights as a right of defense. It is based on the contemporary view adopted by the international courts for the protection of human rights, that there are conflicts of rights (once there is recognition of new rights of the victims, as a right to justice), and it is impossible to apply the interpretive rule "pro homine"- as there are several conflicting rights of distinct individuals involved in the current human rights era, as highlighted by the Inter-American Court of Human Rights in the Genie Lacayo and Gomes Lund cases.
The accusatorial system supposes the configuration of the process as a triangular relationship between the accuser, the defender and the judge. The so-called triangular structure of criminal proceedings is indispensable for guaranteeing the judge's equidistance in relation to the two conflicting interests - combating crimes and defending the human rights of victims, both exercised by the prosecution; and combating arbitrary and unjust punishments, exercised by the defense.
In the accusatorial system, the accusation bears the burden of proving the imputation to the defendant. Thus, the accuser has to present evidence and not mere presumptions. The judge is not supposed to do that – if so, it would hurt the impartiality and the equality of the parties. The defendant has fundamental rights - among which is the presumption of innocence. That is, the accused does not have to prove a negative fact: he does not have to prove that he did not commit a particular crime. Thus, if the prosecution does not have complete evidence for the offense, the consequence is acquittal.
The insufficiency of evidence on the guilt of the accused demonstrates that the accusation has not fulfilled its burden and the defendant should be acquitted. If the evidence is insufficient, the judge must acquit and not try to obtain new evidence: the intention to obtain the real truth of the facts not allows this breach of the in dubio pro reo principle. The principle of in dubio pro reo means that a defendant may not be convicted by the court when doubts about his or her guilt remain. The presumption of innocence dictates that when a criminal statute allows more than one interpretation, the one that benefits the defendant should be chosen.
The role of the judge is to maintain an equidistant relation from the parties in order to preserve the impartiality, knowing that if the judge makes a move to determine evidence, it will generally aid the indictment, since the defendant would be acquitted by insufficient evidence. The judge must be barred from seeking evidence, for in this way he denatures the system and becomes an auxiliary of the Prosecution, damaging the defendant and his right to the presumption of innocence, which counted on the acquittal for lack of evidence by the accusation of the accusation.
Despite some inquisitorial remnants of Brazilian infra-constitutional legislation, it is understood that the Brazilian constitutional system has adopted the accusatorial system, in the face of the new constitutional system, according to which the functions of judging, accusing and defending are clearly separated, the presumption of innocence is ensured and the contradictory is widely predicted.
The accusatorial system is clearly outlined in the Federal Constitution of 1988 with the recognition of: (i) separation of the functions of Power (art.2), (ii) individual rights and guarantees (due to legal process and acceptance of human rights (iii) ownership of the public criminal action against the Public Prosecution Service (article 129, I FC), (iv) constitutionalization of the lawyer's function (article 133 FC) and (v) (Article 134 FC).
The model constitutionally hosted by the Brazilian democratic state should be the starting point for the interpretation of all the infra-constitutional criminal procedural rules.
B. Inquisitorial or inquisitive system
In the pure or classic inquisitorial model, the judge is the single organ and acts ex officio (without provocation) and exerts broad powers of verification of the real truth in all phases of the process. There are no parties, but “interested”, who are not part of the process, coming to the presence of authority to contribute to the revelation of the “real truth” of the facts. As everyone is cooperating to reach the real truth, there are no procedural subjects with antagonistic interests. The only procedural subject is the judge, who demands of everyone collaboration without recognizing rights in the process.
The main features of this system are: (i) ex officio initiative of the judge; (ii) the judge's ample freedom to produce evidence and (iii) the configuration of the accused as an object in the search for real truth and not as a subject of fundamental rights.
The inquisitorial system had its origin in the Inquisition for investigation and repression of crimes against religion, especially heresy, as an instrument to strengthen the authority of the Catholic Church. It was soon expanded by the need for affirmation of royal power against the feudal nobility, since it implied in the consolidation of the idea of concentration of all the power in the hands of the sovereign.
Today, with the consecration of human rights in international society and with the change of procedural paradigm in the Constitutional State, the pure inquisitorial model is overcome. There are ordinances that adopt the so-called mixed systems, as we will see below.
C. Mixed system
The mixed system emerged in France in the early nineteenth century. Considered a mixture between the two other procedural systems, it initially adopts an inquisitorial instruction, with a concentration of the functions of accusing and deciding at first and later separation of functions. In the inquisitorial phase, the instruction is written and secret, without charge and without any opportunity of contradictory. Only after the prosecution is filed will the defendant be able to defend himself .
Today the doctrinal and jurisprudential tendency, including in the Brazilian Constitutional Court, the Federal Supreme Court, is to be considered, at least in the rhetoric, that the mixed system is overcome after the edition of the Federal Constitution of 1988, which adopted the accusatorial system.
Slowly, there was the updating of the Criminal Procedure Code, with the repeal of inquisitive devices.
The direct process of the police investigation in the federal area between the Federal Police and the Federal Public Prosecutor's Office helped to make it clear to the legal operators that the role of the judge is to be a guardian for public freedoms and not to fight against crime or to remedy the deficiencies of the Prosecution.
However, there is a persistence of inquiring normative features in the CPP, even after almost 30 years of the edition of the Federal Constitution of 1988, which the law-operators must stand against. Even after the post-1988 criminal procedural reforms, it is difficult to overcome inquisitive gaps. For example, the judge may determine, ex officio, during the course of the investigation or before issuing a judgment, to take steps to resolve doubts on a relevant point (article 156, II, Criminal Procedure). Again, if the judge has doubts and orders, the new evidence will generally help the indictment, since the defendant - in doubt - must be acquitted (in dubio pro reo). The possibility of the judge ordering several precautionary measures against the accused, including imprisonment, ex officio, without request, in the case of criminal prosecutions (the judge "postulates" and decides - typical inquisitive trait) is still maintained in some infra-constitutional provisions...
III. The concept of litigation in criminal proceedings and the searching for the truth of the facts
The purpose of the criminal process and the roles played by the judge and public prosecutor are reflexes of the admission or not of the concept of litigation on criminal proceedings. For those who think that the criminal process is intended to ascertain the “real truth” of the facts, there is no litigation on criminal process, as all those involved in it should collaborate to obtain this truth: Judge, Public Prosecutor and Defense. In this view, there are no opposing parties, and the Public Prosecutor's Office would be an “impartial” body. This approach is a reflection of the myth of the searching for real truth, because it is only possible to sustain the existence of a criminal procedure when it is understood that there are parts in opposite positions.
The traditional doctrine lists the search for the “real truth” as one of the principles informing the criminal process. Such a search would justify the investigating powers of the judge, typical of the inquisitorial system. Thus, according to this thinking, the principle of real truth means, therefore, that the magistrate must seek evidence, as much as the parties, not content with what is simply presented to him. Consequently, the magistrate would only adopt the presumption of innocence and the in dubio pro reo at the time of the sentence, after exerting himself to the maximum and having not obtained evidence on the facts.
However, the presumption of innocence is the principle informant of all criminal proceedings and must not only be applied in the sentence. Moreover, acceptance of the magistrate's search for evidence of imputation is to turn him into an auxiliary of the Accuser, as seen above, supplying him with omission and poor work. Finally, the impartiality of the judge acting in court is affected, since the evidence in fact imputed by the prosecution only benefits, since the defense is already victorious by the mere absence of evidence.
The principle of the search for “real truth” is not in line with constitutional dictates, especially with the constitutional guarantee of the presumption of innocence and with the accusatorial model of criminal procedure adopted by Brazil. As FERRAJOLI argues, the truth pursued by the accusatorial model is the "relative" or "formal" truth (of the records); their attainment "is entrusted ... to the free development of the conflict between the parts of the process, bearing contrasting points of view precisely because they hold opposing interests".
IV. Impartiality of judgment
The principles of independence and impartiality of the judiciary seem to enjoy universal allegiance on the level of national law – not only in Brazil. In addition, the Covenant on Civil and Political Rights and the regional human rights instruments recognize the guarantee of an independent and impartial tribunal as a human right to fair trial.
Although some countries may not yet have ratified or acceded to any of these human rights treaties, they are still bound by customary rules of international law, as well as by general principles of law, of which the principle of an independent and impartial judiciary is generally considered to form part. They are thus also bound by the fundamental principles laid down in the Universal Declaration of Human Rights, which provides in its article 10 that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.
The Human Rights Committee has held that the notion of “impartiality” in article 14(1) of the Covenant on Civil and Political Rights “implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties”. The Inter-American Court of Human Rights has also stressed that “there exists an inseparable bond between the principle of legality, democratic institutions and the rule of law”. As to the European Court of Human Rights, it considers that the notion of impartiality contains both a subjective and an objective element: not only must the tribunal be impartial, in that “no member of the tribunal should hold any personal prejudice or bias”, but it must also “be impartial from an objective viewpoint”, in that “it must offer guarantees to exclude any legitimate doubt in this respect”. The European Court thus adds to the more subjective mental element of bias the important aspect of availability of guarantees in the removal and disengagement of the adjudicator from any conflicting interests. Currently, it is one of the main guarantees n contemporary criminal proceedings.
The adoption by the Brazilian constitutional text of the accusatorial system, with a process characterized by the contradictory and ample defense, generates, as a consequence, the realization of the impartiality of the judgment. It is essential to the stability of society that citizens should be able to count on evenhanded justice – and it is this evenhandedness which is the chief characteristic of a democratic Judiciary.
The impartiality of the court is the result of the accusatorial system and, more remotely, of the separation of the powers of the State, since it is related to the independence of the Judiciary in relation to the other powers and to the detachment of the judge from any interest that goes beyond strict compliance and law enforcement.
The magistrate, thus, is entitled to impose the sentence, paying attention to fundamental rights and its essential neutrality, being absolutely forbidden to act as a party. The Judiciary cannot assign to itself the function of deliberation on opinio delicti. Thus, the guarantee of impartiality of the court is not in line with the possibility of an initiative by the Judiciary itself in criminal process.
That is because in criminal proceedings, it is not for the Judge to investigate and obtain evidence. Impartiality presupposes that investigative and persecutory functions must be performed by a body independent of the judges: as a rule, the Public Prosecution Service.
In this way, the guarantee of impartiality of the judgment can be considered as the requirement of separation (functional and institutional) of the prosecuting judge, and of its removal from the interests of any of the parties to the case.
It is never enough to insist: when it is incumbent upon the accuser to demonstrate the guilt of the accused, any doubt must lead to acquittal. That is, because of the principles of presumption of innocence and in dubio pro reo, if the judge has any doubt about the facts, he should judge in a favorable way to the accused, absolving him.
However, part of the theorists defends the magistrate's investigative power in criminal proceedings in order to determine, ex officio, the production of evidence in searching of the truth about the imputed facts. It is alleged that impartiality is not affected, because the criminal judge, when ordering the production of exculpatory evidence, could not know the result of the proof (if favorable to the thesis of the Prosecution or Defense).
We disagree, because it does not matter the result of the proof: the activism of the judge only concerns to the Accuser, since the defendant is victorious if nothing is proven. Thus, it is incumbent upon the prosecutor to conduct a probationary investigation, requiring what is necessary to prove the accusation’s theses. If the prosecutor remain inert and cannot eliminate doubts, the Judge cannot help it…
The theorists that defend the judge's possibility to interfere in criminal proceedings disregard, as already said the important principle of the presumption of innocence, which prevents the accuser from being in the comfortable position of waiting for the defendant to prove his innocence or for the judge to produce the necessary proof for conviction. For such authors (supported by some judicial precedents), the search for real truth and State’s efficiency in the fight against crime would exceed the principle of in dubio pro reo, which could only be applied at the time of the sentence, after the judge exhausted all the means to obtain the truth (even if it helps the Indictment).
However, the inertia of the prosecution can only produce one result in a democratic criminal proceeding: the invocation of the presumption of innocence.
It should be borne in mind the lesson from LUIGI FERRAJOLI: the rigid separation of roles between the actors in the process, which is the first characteristic of the accusatorial system, prevents the initiative of proof from being taken by subjects other than the accused.
Criminal proceedings based on the Constitutional State and International Human Rights treaties cannot admit the existence of a “principle” known as “the searching for the truth”, which would justify the judge's initiative in acquiring evidence with the scope of eliminating doubts about what happened in factual reality.
The argument that there is no way to withdraw from the judge the probative power because it could be prevented from clarifying some aspect of the evidence produced by the parties for their conviction must be rejected in the light of the fundamental rights.
The search for truth is incompatible with the principle in dubio pro reo. As a result of which, the lack of conviction or uncertainty impose the acquittal.
Accepting the accusatorial system, the impartiality of the court, the due process of law and all the fundamental rights that should be involved in the criminal process, it is more than enough time to stop the reproduction and repetition to exhaustion that the search for truth is a purpose and principle of the criminal process.
Abade, Denise Neves. Processo Penal – coleção carreiras federais (São Paulo: Ed. Metodo, 2014).
_____. Direitos Fundamentais na Cooperação Jurídica Internacional - extradição, assistência jurídica, execução de sentença estrangeira e transferência de presos (São Paulo: Saraiva, 2013).
_____. Garantias do Processo Penal Acusatório – o novo papel do Ministério Público no processo penal de partes (Rio de Janeiro: Renovar, 2005).
Bilbao Ubillos, Juan María. La eficácia de los derechos fundamentales frente a particulares. Análisis de la jurisprudencia del Tribunal Constitucional (Madrid: Centro de Estudios Políticos y Constitucionales, 1997).
CARVALHO RAMOS, André. Curso de Direitos Humanos (São Paulo: Saraiva, 3rd Ed, 2016).
Ferrajoli, Luigi. Derecho y razón – teoria del garantismo penal, Trad. de Perfecto Andrés Ibañes, Alfonso Ruiz Miguel, Juan Carlos Bayón Mohino, Juan Terradilos Basoco, Rocío Cantarero Bandrés (Madrid: Ed. Trotta, 1998) p. 610.
Montero Aroca, J. " “La garantía procesal penal y el principio acusatorio”, available at https://archivos.juridicas.unam.mx/www/bjv/libros/2/836/28.pdf.
[*] Ph. D. in Constitutional Law (Universidad de Valladolid, Spain); Senior Federal Prosecutor in Brazil; Professor at Escola Superior do Ministério Público da União. e-mail: email@example.com. Address: Ministério Público Federal - Procuradoria Regional da República, Rua Brigadeiro Luis Antonio 2020 – 8º andar, São Paulo-SP, 01318-002 – Brasil.
Check the cases in CARVALHO RAMOS, André. Curso de Direitos Humanos. São Paulo: Saraiva, 3rd Ed, 2016, p. 347. BILBAO UBILLOS reverberates it approaching the thesis to the transformation of the liberal State into a Social State of Right "unmasking the fiction that linked the enjoyment of freedom in the social sphere to the single affirmation of the principle of legal equality. The theory of fundamental rights in the social state is based on the observation that the legal guarantee of freedom, in the abstract, is insufficient in many cases to ensure by itself the real freedom of each and every citizen (...) " in BILBAO UBILLOS, Juan María. La eficácia de los derechos fundamentales frente a particulares. Análisis de la jurisprudencia del Tribunal Constitucional. Madrid: Centro de Estudios Políticos y Constitucionales, 1997, p. 263. On the analysis of the expansive force of fundamental rights also in penal institutes, see ABADE, Denise Neves. Direitos Fundamentais na Cooperação Jurídica Internacional - extradição, assistência jurídica, execução de sentença estrangeira e transferência de presos ". São Paulo: Saraiva, 2013, especially pp. 69/84.
 In this sense, we must mention the thought of MONTERO AROCA, J., which divides in three the consequences of the accusatory principle: 1) there can be no prosecution if there is no charge; 2) it can not be condemned by facts different from those described in the indictment, nor when the person is different from the one that was accused; 3) The judgment may not be attributed to the material control authority of the case that questions its impartiality. MONTERO AROCA, J. " “La garantía procesal penal y el principio acusatorio”, , available at https://archivos.juridicas.unam.mx/www/bjv/libros/2/836/28.pdf, visited on 19/08/2018
As already pointed out by the author in ABADE, Denise Neves. Processo Penal – coleção carreiras federais. São Paulo: Ed. Metodo, 2014
 ABADE, Denise Neves. Garantias do Processo Penal Acusatório – o novo papel do Ministério Público no processo penal de partes. Rio de Janeiro: Renovar, 2005, pp. 41/47.
 RESOLUÇÃO CJF Nº 63, from June 26th, 2009, published at DOU em 30.06.2009
 FERRAJOLI, Luigi. Derecho y razón – teoria del garantismo penal, Trad. de Perfecto Andrés Ibañes, Alfonso Ruiz Miguel, Juan Carlos Bayón Mohino, Juan Terradilos Basoco, Rocío Cantarero Bandrés, Madrid: Ed. Trotta, 1998,p. 610
 Art. 14 (1) of the Covenant on Civil and Political Rights; art. 10 of the Universal Declaration of Human Rights; art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; arts. 7 and 26 of the African Charter on Human Rights and Peoples' Rights
 Communication No. 387/1989, Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in UN doc. GAOR, A/48/40
(vol. II), p. 120, para. 7.2
 Case Vasquez Vejarano v. Peru, Case 11.166, Report No. 48/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 1200 (1999).
 Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 30; for the text see the Courts’s web site: http://echr.coe.int.
 FERRAJOLI, Luigi. Derecho y razón – teoría del garantismo penal, Trad. de Perfecto Andrés Ibañes, Alfonso Ruiz Miguel, Juan Carlos Bayón Mohino, Juan Terradilos Basoco, Rocío Cantarero Bandrés, Madrid: Ed. Trotta, 1998, p. 549