O ÔNUS DA FUNDAMENTAÇÃO ELEVADA COMO ARGUMENTO PARA MANUTENÇÃO DO ART 385 DO CÓDIGO DE PROCESSO PENAL

Abstract

This paper addresses the controversy regarding the constitutionality of Article 385 of the Code of Criminal Procedure (CPP) under the Federal Constitution of 1988, which authorizes a judge to issue a conviction even when the Public Prosecutor's Office, the holder of the criminal action, requests an acquittal. The general objective is to analyze the constitutionality of the said provision. As a specific objective, it seeks to verify whether the solution of the "heightened burden of reasoning" is sufficient for the alignment of Art. 385 with the accusatory system. The methodology employed involves doctrinal and jurisprudential analysis, with a study of landmark cases from the superior courts, notably the debate surrounding ADPF No. 1122. The research contrasts the arguments against the article's constitutionality, which cite violations of judicial impartiality and the adversarial principle, with the majority position that upholds its constitutionality based on the principles of reasoned free conviction and the non-waivability of the criminal action. It is concluded that the prevailing case law, by requiring a heightened burden of reasoning, has found an interpretive solution that imposes on the magistrate the duty to justify their decision in a robust and exceptional manner, as a condition of validity for a conviction established against the position of the holder of the punitive claim.