An old new tema: the (im)possibility of the judge to condemn when the public prosecution requests absolution

Abstract

Since the 1988 Constitution, the functions of accusing and judging criminal cases have been separated (art. 129, I). With the advent of Law no. 13,964/2019, the legislator expressly attributed the accusatory structure to criminal procedural law, with the purpose of prohibiting the replacement of the Public Prosecution by the magistrate, removing, from the latter, ex officio powers, such as, e.g., to initiate criminal action, decree precautionary measures and produce evidence. In this context, there is debate about the (in)compatibility of art. 385 of the CPP, which allows the judge to convict even in cases in which the Public Prosecutor's Office opts for acquittal, with the Constitution and the accusatory structure. The article explores the issue, indicating the arguments in favor of the validity of the device, as well as the arguments that consider it incompatible with the accusatory criminal process. Finally, the article proposes an interpretative solution for art. 385 of the CPP.