SISTEMA ACUSATÓRIO: ANÁLISE LEGISLATIVA DO JUIZ DAS GARANTIAS COMO FORMA DE MANUTENÇÃO DO ESTADO DEMOCRÁTICO DE DIREITO SOB A ÓTICA DOS IMPACTOS NO MUTUALISMO DOS TRÊS PODERES

Abstract

The present study aims to analyze the mismatch of the Brazilian legal system in the face of the constitutional guarantee of the accusatory system, with the objective of verifying if after the Federal Constitution of 1988 (CF/1988) there were advances in the scope of Brazilian Criminal Procedural Law, especially after the changes 13,964/2019, which established the so-called judge of guarantees and expressly established the accusatory system as a way of acting in the criminal process, defining, as a consequence, the separation of the functions of judging, accusing and defending, in order to guarantee the impartial performance of the judge in a Democratic State of Law and the effectiveness of the fair process. In view of the new normative reality of CF/1988, much has been discussed about the risk of contamination of decisions on the merits made by the criminal judge during criminal prosecution, specifically due to the precautionary and instructive prerogatives in the pre-procedural phase granted by the current Code of Law. Criminal proceedings. Despite the efforts made by the Legislative Power to make progress and, therefore, establish a preponderance solely with the Accusatory System, recent reforms have been carried out with contradictory designs, especially in view of the perspective presented by ADI 6,299 and the preliminary decision in the Precautionary Measure given by Minister Luiz Fux. For the development of the study, the research sought to deepen the analysis of the institute of the Juiz das Garantias, from the perspective of the Constitution of the Republic and the Brazilian criminal procedural legislation, starting from the historical and dialectical understanding of the context in which the criminal and procedural systems were developed. the consequent repercussion in the corresponding legal system. Bibliographic and documental research was adopted through the consultation and use of articles, laws and judgments. Regarding the areas of didactic knowledge, the research took on a multidisciplinary aspect, covering Constitutional Law, Criminal Procedural Law and Criminal Law. In addition, it presented an explanatory nature, seeking to understand the reality of normative events arising since the constitutionalization of the current system, through the Judge of Guarantees, with the purpose of verifying possible mismatches between the criminal process and the constitutional guarantees. In order to make the Brazilian criminal procedure compatible with the accusatory system, it was necessary to expose the inconsistencies present in the current criminal procedural legislation, in order to remedy and adapt the infraconstitutional procedural rules to the Constitution of the Republic, given the need to maintain the constitutional guarantee, facing a legal facet of progress or setback of the process in the reality of the Judiciary, defining a model of Judge of Guarantees compatible with a Democratic State of Law, adequate and viable to the Brazilian Justice System, which matches the future perspective of the criminal procedure with all the Powers.