Análise do artigo 385 do Código de Processo Penal à Luz do Sistema Acusatório

Abstract

The present study investigates the constitutionality of article 385 of the Code of Criminal Procedure, which allows the Judge to hand down a conviction and consider aggravating factors in public criminal action crimes, even when the Public Prosecutor's Office opts for acquittal and does not allege such aggravating factors. The central question is to assess whether this device, in light of the Brazilian accusatory system, compromises the principles of impartiality, contradictory and due legal process, the Federal Constitution and the International Human Rights Treaties, putting the role of the Public Prosecutor's Office at risk. as the holder of the criminal action and, consequently, the position of the Judge. Adopting a theoretical-dogmatic approach, the work examines the decision-making role of the judge and his instructional powers, in order to verify the impact of this rule on procedural balance and the separation of functions in the criminal process. Finally, the study suggests a critical reflection on normative interpretation and its effects on the system of constitutional and conventional guarantees.