ADPF 1122: DA RECEPÇÃO DOARTIGO385DOCÓDIGODEPROCESSO PENAL PELACONSTITUIÇÃO DE 1988

Abstract

The continued validity of the 1941 Code of Criminal Procedure, which emerged during an authoritarian period in Brazilian history, introduced a series of challenges aimed at adapting a procedural model understood by some as inquisitorial to an accusatory system, given the option of the 1988 Constituent Assembly to adopt the accusatory system in Brazil. For this reason, the aim of this paper was to outline the doctrinal and case law arguments on the subject (especially ADPF 1122) seeking to investigate whether article 385 of the Code of Criminal Procedure is compatible with the accusatory system and accepted by the Constitution. In view of this, a qualitative, descriptive and exploratory approach was used, through a bibliographical analysis of the different positions of the doctrine and jurisprudence on the subject in order to, through a concretizing hermeneutic perspective, validating interpretative principles such as unity and practical agreement, outline the accusatory and inquisitorial criminal procedural systems, examine the emergence of the Brazilian Code of Criminal Procedure, analyze the main arguments raised about the statement, especially in the context of ADPF 1122, in order to, finally, establish whether or not the aforementioned statement was accepted. It was concluded from this treatment that the Original Constituent actually chose the accusatory system, despite this system having some peculiarities resulting from the context in which the Code of Criminal Procedure emerged, which does not, however, remove its accusatory nature. Therefore, by comparing the different doctrinal perspectives and case law with the bases of local criminal proceedings, it was concluded that article 385 of the Code of Criminal Procedure is compatible with the accusatory system and was accepted by the 1988 Constitution, and the request made within the scope of ADPF 1122 cannot be accepted.