A iniciativa probatória do juiz: uma análise sob a perspectiva do sistema acusatório

Abstract

The present work has as its theme “The judge's evidential initiative: an analysis from the perspective of the accusatory system”. What is sought is to analyze the power conferred on magistrates by item II of article 156 of the Code of Criminal Procedure, relating to the production of evidence by them of office, as well as their correspondence (or not) with the accusatory system. In order to achieve the objective, several guiding principles of the criminal process will be studied, and the existing procedural systems will be analyzed, showing, in the end, which model is adopted by the Brazilian legal system. In addition, three subjects of the criminal procedural relationship will be examined, namely the prosecution, the defense and the judge, with an indication of which functions are assigned to each of them. The study will also focus on some aspects related to the production of evidence within the Brazilian criminal process, such as its concept, its purpose and object, the burden of proof and a debate about a principle considered by many doctrines as guiding the country's legal system in the criminal sphere, the search for real truth. In addition, foreign codes precursors to the Brazilian Penal Procedure Code, their explanatory memorandum and some of the instruments provided for in it, such as the judges' evidential initiative, will be analyzed. In this regard, the paper seeks to understand what is provided for in items I and II of article 156, with the presentation of arguments against and in favor of the existence of the referred institute, in a vast doctrinal research, with the purpose of, after, understanding whether the aforementioned legal texts are in line with the criminal procedural system adopted by the Brazilian legal system.