A (IN) CONSTITUCIONALIDADE DO ARTIGO 385, IN FINE, DO CÓDIGO DE PROCESSO PENAL: É POSSÍVEL AO JUIZ RECONHECER AGRAVANTES NÃO CONTIDAS NA DENÚNCIA?"

Abstract

The present work aims to discuss, based on the accusatory system, the possibility of conviction and application of ex officio aggravating factors by the judge, investigating the possible invalidity of article 385 of the Code of Criminal Procedure. Criminal procedural operation, from a constitutional point of view, adopts an accusatory model in which there is a clear distinction between the activities of accusing, defending and judging. However, there is no doubt that the Code of Criminal Procedure still has inquisitive remnants in which there is a strong activity on the part of the judge and consequently leads to a violation of the fundamental rights and guarantees of the citizen. The choice of the topic was based on the need for a critical stance regarding the application of the Brazilian criminal process from an infraconstitutional point of view, mainly after the inclusion of Art. 3rd-A to the Code of Criminal Procedure by the Anti-Crime Package, reaffirming that in Brazil The system adopted is accusatory, prohibiting the judge's initiative in the investigation phase and the substitution of the prosecuting body's evidentiary role.