Inconstitucionalidade de condenação de ofício: a impossibilidade de o juiz condenar quando o Ministério Público pede a absolvição do réu

Abstract

The present work aims to defend the impossibility of the judge condemning the defendant when the Prosecutor´s Office pleads for absolution in final arguments. Although the subject in question is expressly permitted by the first part of article 385 of the Code of Criminal Procedure, it is necessary to bear in mind that the aforementioned Codex was prepared in 1941 and has an inquisitive bias, highly associated with dictatorial regimes and influenced by the CPP of fascist Italy. In contrast, the current Federal Constitution has, when making a systematic interpretation, an accusatory bias and concern with the dignity of the human person, in addition to guaranteeing individual rights and the separation between prosecution and judge. Therefore, it is necessary to reread the highlighted infra-constitutional rule, in order to understand the possibility of the Prosecutor’s Office asking for the defendant's absolution and, consequently, having the judge acquit him, as there is no more accusation claim (accusation), which makes impossible the punitive claim (condemnation).