The (Un)Constitutionality of Article 385 of the Brazilian Code of Criminal Procedure: The Functional Limits of the Judge in the Adversarial System in Light of ADPF 1122

OS LIMITES FUNCIONAIS DO JUIZ NO SISTEMA ACUSATÓRIO À LUZ DA ADPF 1122

Abstract

This research aims to analyze the (un)constitutionality of Article 385 of the Brazilian Code of Criminal Procedure (CPP) in light of the ADPF 1122, with particular attention to the functional limits of the judge within the accusatorial system implicitly adopted by the 1988 Federal Constitution. The study begins with the premise that the aforementioned provision, by allowing the judge to convict the defendant even when the Public Prosecutor’s Office has requested acquittal—violates the structural principles of the accusatorial criminal procedure, such as adversarial proceedings, full defense, impartiality, and the correlation between accusation and judgment. The methodology consists of bibliographical and documentary research, with a qualitative approach, analyzing doctrinal works, relevant case law, current legislation, and the grounds of ADPF 1122. The study seeks to determine whether the provision represents an affront to adversarial proceedings, full defense, judicial impartiality, and the principle of correlation, which are pillars of due process of law. The expected results include demonstrating that Article 385 of the CPP, by allowing the replacement of the prosecutorial will with the judge’s ex officio action, undermines the logic of the accusatorial system and conflicts with the fundamental precepts of the 1988 Constitution.