Os poderes instrutórios conferidos ao magistrado no processo civil e a sua incompatibilidade com as garantias fundamentais

Abstract

Increasingly, the search for a "fair decision" has been influencing the development of civil procedural systems to provide broader discovery powers to judges. In this paper, we propose a reflection on the risks involved in this theory and this broad discretion afforded to judges, especially due to the possibility of it (i) tarnishing the judge's impartiality, (ii) violating the constitutional guarantee of the reasonable duration of the case and the effectiveness of the court granted relief and (iii) infringing the Rule of Law through the use of performative utterances whose control is difficult if not impossible. We also analyze this issue under the perspective of class action/collective actions and the use of procedural stipulations by the opposing parties as a way to limit the judge's discovery powers. We conclude, in the end, that regardless of the nature of the involved rights – alienable and inalienable - and the type of action - individual or class/collective -, an ex officio discovery order to produce evidence infringes upon the parties fundamental rights and, for this reason, must not be at the judge’s discretion