A Lei 11.690/08 à luz dos princípios informadores do sistema processual acusatório: inconstitucionalidade da iniciativa probatória à cargo do juízo.

Abstract

With the advent of the Law 11690/08, and the new wording of art. 156 of the CPP, which generated changes in the criminal proceedings regarding the initiative of the trial evidence, there was a question whether the impartiality of the court preserved when in office, is authorized to determine the production of evidence? If this prediction is valid in the current legal system procedure, adopted by the Federal Constitution of 1988 and if this would be against the constitutional principles of criminal procedure informants? On that issue this paper is to present the differences between procedural systems inquisitive and accusatory, demonstrating through the constitutional principles of criminal procedure that the procedural system adopted by the 1988 CF is the acusatorio.e the CPP, still in force, on some of its provisions inquisitohedade itself is marked by the time it was prepared for the end, show that art. 156, the CPP, with the wording given by Law 11690/08 is unconstitutional, given the procedural principles of the accusatory system, especially as regards the provision of evidence initiative over the national judge, even before the criminal action instituted. Defining the systems and procedural accusatorial inquisitive, characterizing them and presenting his feature differentiator, it was possible to ascertain which system procedure adopted by Brazil, especially after the advent of the Federal Constitution of 1988. Whereas it is the system of criminal procedure system accusatory mother, argued its principles are the principles Regents (characters) from the inquisitive, yet this, in certain aspects in the Code of Criminal Procedure, demonstrating the need for adequacy of the Code of Criminal Procedure to the model accusatory proceedings. Using the research literature on the subject addressed, it was from the analysis of those principles, demonstrate, the deductive method, the unconstitutionality of art. 156, I, which provides evidence of the initiative at the stage of the trial police investigation, in violation of the constitutionally provided for criminal procedural principles, especially the impartiality of the national judge, and attempt to look over the application of art. 156, II, when to defend the interests of the individual, as result of providing the principles of presumption of innocence and "for king, under penalty of incurring the same vice of unconstitutionality of section I.