A atuação ex officio do juiz na fase pré-processual: entre a necessidade probatória e a disfunção epistêmica

Abstract

The present research deals with the ex officio evidentiary performance of the magistrate in the pre-procedural phase, with the objective of analyzing its compatibility with the adversarial system, adopted constitutionally and reinforced by the changes promoted by the Pacote Anticrime (Law 13.964/2019). The adversarial process model is built on the basis of the separation of procedural functions, impartiality and the leading role of the parties in the management of evidence, which makes evidentiary judicial activism incompatible with its elementary premises, especially in the preliminary investigation stage, marked by inquisitoriality and the inexistence of a procedural relationship with the respective delimitation of the object of the controversy, to be done only in the judicial stage. In fact, the judge's probationary initiative in the preliminary investigation, without due provocation by the parties, constitutes an inquisitorial remnant irreconcilable with the current normative order, as it violates fundamental rights and guarantees, namely by tarnishing the judge's impartiality, a structuring principle of a process criminal of an adversarial nature. For the development of the work, a basic methodology was used, of a theoretical-bibliographic and documentary nature, made through theoretical references already analyzed and previously published in written and electronic media, such as books, articles in scientific journals, among others.