A iniciativa instrutória do juiz no processo penal brasileiro

Abstract

The 1988 Federal Constitution adopted principles that impose the accusatory procedural system as the governor of Brazilian criminal procedure. As a result, the Penal Procedure Code – that was coined under an autocratic regime, the New State, and was full of inquisitive rules that were common that period of history – had to undergo trough rereading, which implied non-reception of rules incompatible with the new legal order established. Among these rules are those that, in the course of the criminal proceedings, grant instructive powers to the judge (official initiative to determine production of evidence), due to incompatibility of the substitution, by an impartial judge, of the procedural activity performed by partial subjects in an accusatory process. Therefore, the present study aims to analyze the possibility, within the scope of the accusatory criminal procedural system, of granting instructive initiative to the criminal judge. If possible, questions the measure of the instructive powers granted as a way of avoiding arbitrary acts and tainting impartiality and equality, both that must exist to satisfy due process of law, a fundamental constitutionally recognized right