ON THE AUTONOMY OF THE JUDGE REGARDING THE NON-COMPLIANCE WITH THE REQUESTS MADE BY THE PUBLIC PROSECUTOR'S OFFICE AS THE AUTHOR OF THE ACTION: THE CONFLICT BETWEEN ARTICLE 385 AND ARTICLE 3º-A OF THE CPP

Abstract

This article sought to analyze the judge's autonomy regarding non-compliance with requests made by the Public Prosecutor's Office as author of the action, the conflict between articles 385 and 3-A of the Criminal Procedure Code. The objective is to verify whether the judge's autonomy to condemn when the Public Mystery requests acquittal violates the accusatory system, due legal process, the adversary system and the judge's impartiality. For the development of this article, the deductive research method was used, with a technique for collecting bibliographic and documentary data on doctrines, criminal legislation, the Federal Constitution and jurisprudence of the Federal Supreme Court and Superior Court of Justice related to the topic. The research result shows that the autonomy granted to the magistrate in art. 385 of the Code of Criminal Procedure violates the accusatory system and the fundamental precepts that should guide criminal prosecution. It is concluded that there is a conflict between articles 385 and 3º-A of the Criminal Procedure Code and with the principles guaranteed in the Federal Constitution, and the unconstitutionality of the article must be recognized. 385 for constitutional non-receipt of the device.