A (in)compatibilidade do art. 385 do Código de Processo Penal com o sistema acusatório e a Constituição Federal de 1988: a análise de jurisprudencial do Acórdão proferido pelo STJ no REsp n.o 2.022.413 – PA

Abstract

This article aims to analyze the constitutionality and compatibility of art. 385 of the Code of Criminal Procedure with the accusatory system and the new art. 3-A, of the same Code, all based on the Jurisprudential Analysis of the Judgment handed down by the Sixth Panel of the Superior Court of Justice, in REsp no. 2.022.413 – PA. In this sense, an introduction will be made regarding the basic perspectives of the Brazilian criminal process, in the face of the accusatory system and in a Democratic State of Law. Next, the perspective of the Brazilian Superior Courts on the subject will be exposed, concluding that Brazilian judges still maintain neo-inquisitive reasoning. In addition, a detail of the Judgment examined will be carried out, with the main focus being the Vote-Vista of Minister Rogerio Schietti Cruz. From this perspective, the concepts of Criminal Jurisdiction will be reflected, with its consequences, of accusatory claims, instructional powers and procedural truth, as well as the principles of unavailability, obligatoryness, judicial impartiality, correlation and contradictory will be investigated. and the functional independence of the Public Ministry and Judges. Finally, the incompatibility of art will be concluded 385 of the CCP with the accusatory system and the Brazilian legal system.