TRANSNATIONAL LAW AS AN INSTRUMENT TO ENHANCE JUDICIAL IMPARTIALITY IN CRIMINAL PROCEDURE: AN ANALYSIS BASED ON EHRC CASES

Abstract

This article aims to discuss the impartiality of the judge in criminal proceedings and the influence of judgments of the European Court of Human Rights (ECHR) on Brazilian law, especially on Law 13.964/2019, as a transjudicial communication, in the light of transjudicial law. The hypothesis of the paper is that the rules of the Brazilian criminal procedure cause a cognitive imbalance of the judge in favor of the accusatory version, since, ordinarily, it is through this, without the exercise of the contradictory and full defense, that the magistrate has the first contact with the facts that he/she will judge, and that the judgments of international courts, such as the ECHR, can influence the change of the Brazilian procedural system. Among the judgments of the ECHR, special emphasis will be given to the cases Piersack v. Belgium (1982) and De Cubber v. Belgium (1984). Finally, ways to recover the cognitive balance of the judge will be analyzed. To this end, the article is based on a bibliographical review, emphasizing judicial impartiality, especially from the subjective aspect, the application of the theory of cognitive dissonance to criminal proceedings, the analysis of Law 13.964/2019, which inserted the judge of guarantees in Brazilian criminal proceedings and presents itself as an attempt to restore the cognitive balance of the judge, and the influence of some judgments of the ECHR on Brazilian criminal proceedings.