A iniciativa probatória do juiz no processo penal brasileiro: estudo do dever ser sob o ser

Abstract

The present research starts from the questioning about the evidentiary initiative of the judge in the Brazilian criminal process, raising the question, therefore, if the referred initiative guarantees or harms the principle of impartiality of the judge. To do so, initially, a legal interpretation is made regarding the legal provisions that regulate this evidential conduct, then a dialectic is built whose ultimate objective is to analyze the doctrinal opinion on the subject. Along with the collected result, a consideration is carried out as to whether the initiative is coherent or not with the Democratic Rule of Law. After the dialectical conclusion, the judgment of Habeas Corpus nº 164.49/STF is used as an example of a concrete case of partiality of a judge, in compliance with the facts listed by the Supreme Court and the consequences that resulted from them. Finally, a reflection focused on the attention that must be paid to due legal process is carried out, elucidating historical events of humanity and its advances towards a criminal procedural system promoting impartial guarantees.