Na contramão da Democraticidade: a permanência do juiz inquisidor no processo penal brasileiro

Abstract

The following dissertation consists on the study about the instructory activity developed by the judge in the Brazilian criminal justice process. From the historical investigation of the systems of criminal justice processes, especially the inquisitorial type, it was possible to assess the incompatibility between the role assigned to the criminal law magistrate in the Brazilian law and the foundations of a democratic criminal justice process, as outlined in the Constitution of 1988.That is because the essential presupposition to the development of the inquisitorial system is the concentration of investigative and trial powers in the hands of the judge, whose function is to reach the real truth, while the criminal justice process brought by the Constitution of 1988 have as its core element the distance of the judge from the evidential activity, so the objective impartiality could be preserved. However, the analyses of the Brazilian criminal justice process legislation, since the early days of this nation until the precepts sculptured in the project of the changes of the criminal process law code (PL 8.045/2010), showed the inquisitive guidance on wich is built, even after the advent of the 1988 Constitution and the democratic inspiration brought to the criminal justice process. This is because the reform proposals after the 1988 Constitution maintain the instructory activity of the judge, thus persisting on the inquisitorial structure. The figure of inquisitor judge has doctrinaire support, though the different argument utilized to justify its acceptance. Although, its evident that the various pretexts intend to mask the only foundation that explains the instructory activity of the judge, the real truth reaching. Lastly, is analyzed the principle of objective impartiality, that is violated by the instructory activity of the judge. This research is concluded with analysis about the function of judge on democratic criminal justice process. Its necessary to prohibit judge to collect evidences and confirm the function of guarantor of fundamental rights effectiveness.