Da iniciativa probatória do magistrado e de suas possíveis implicações sobre o principio do in dúbio pro reo

Abstract

The Penal Procedure Code- Decree-Law nº 3.689/1941, in several of its provisions, authorizes the magistrate to assume active position while judging a criminal case. Indeed, not few rules are found that allow the judge to proceed, ex officio, new inquisitions of witnesses; the production of new evidences considered urgent and relevant, even before of the beginning of the penal procedure; and, finally, that give to the judge the possibility of determine the performance of diligences to adjudicate doubt about any relevant point. The Brazilians doctrine, when discuss these provisions, has signed, in a mode almost uncontested, the relevance of the so-called material truth principle, to justify a bigger independence to the criminal judge. Nevertheless, together with such potential, infra-constitutionally available to the magistrate, we found, now in a constitutional scope, postulates that seems affronted by the dispositions of the Brazilian Penal Procedure Code, once that such postulates would assure, actually, a bigger inertia of the judge, allowing him, if not a completely inert posture, at least empowering him, at best, to act on its own will to preserve the interests of the accused, main character of the penal action. Also in apparent opposition to the preliminary initiatives of the criminal judge, exists the named in dubio pro reo principle, that claims that the doubt always must be resolved in favor of the denounced. The present work, in this context, aims to discuss critically the activity ex officio of the judge in the penal action, trying to limit it to the hypotheses of an overcome of eventual failures on the technical defense of the defendant, deeming undue the initiative from the judge that surmount the accusatorial onus of proving the criminal occurrence.