O PACOTE ANTICRIME E A ATUAÇÃO JUDICIAL EX OFFICIO NO PROCESSO PENAL BRASILEIRO.

Abstract

The Code of Criminal Procedure of 1941 was based, in its birth, on authoritarian bases, which culminated in enshrining the inquisitorial system of criminal prosecution. However, the Codex provisions undergo an exponential re-reading in the light of Neoconstitutionalism and the 1988 Constitution, which established important principles to criminal procedural system and, above all, the principle of human dignity. Therefore, doctrine and jurisprudence turned to understand that the persecutory system adopted became the accusatory, with mitigations. However, there is still an old discussion about the possibility of ex officio intervention by the judge in the phases of probative instruction, especially with the advent of Law 11.690/2008, which reaffirmed the possibility of producing official evidence by the judge, with a focus on the search for real truth. In fact, it must be assumed that absolute truth is something unattainable, and all procedural truth is, first of all, relative. Thus, the parties (prosecution and defense) must comply with their burden of proof, while the judge must, as a rule, assess the evidence based on the principle of motivated free conviction. Despite this, there are provisions in the criminal procedural text that allow a certain probative initiative by the judge. In that regard, Law 13.694/2019, which became known as the Anticrime Package, brought significant changes to the Code of Criminal Procedure, most of which seem to try to stop the judge's proactive performance, especially in the context of “lato sensu” precautionary measures. However, the new legislation opened up a new scope for official action by the judge, expressly expressing the possibility that the magistrate can again decree preventive detention or preventive precautionary measures. The provision is presumed to be constitutional, until stated otherwise, and therefore appears to be in line with the accusatory system with mitigations, especially since this action would not be exactly ex officio, but backed by a previous application. Adequate jurisdictional protection and the guarantee of fundamental rights and guarantees enshrined in the 1988 Magna Carta must always be respected.