REFLECTIONS OF THE LEGAL DEFINITION OF THE CRIMINAL CRIMINAL SYSTEM CHARGEIN LAW No. 13,964/19: THE PRODUCTION OF SUBSIDIARY EVIDENCE AND THE COMMITMENT TO THE IMPARTIALITY OF THE MAGISTRATE

Abstract

The purpose of the work focused on a detailed critical weighting about the possibility of the court determining the production of subsidiary evidences therefore investigating to what extent this diligence compromise the right to a fair legal assessment, considering the importance of a democratic-accusatorial process. This study aimed to analyze the judicial activism of the magistrate concerning the subsidiary instruction in the criminal procedure and its consequences on the fundamental rights of the accused. The relevance of the study is based on the social-pragmatic defense of a democratic constitutional order, with application of the fundamental right to an impartial trial by the by the magistrate and the presumption of innocence. To this end, it will be based on bibliographical research, verbi gratia, the most modern doctrine, associated with scientific journals and articles in Google Scholar, whose analysis will be carried out using the bibliographical method. The present bibliographical research had as conclusion that the permanence of the authorization of the subsidiary instructional activity by the judge, provided in the Code of Criminal Procedure, differs from the accusatorial system accepted by the Federal Constitution, as well as established in Law No. 13.964/2019, which expressly provides, in its art. 3º-A, about the adhesion to the accusatorial structure while it demonstrates the way in which the impartiality of the magistrate is corrupted, making the departure of the ex officio instruction insufficient.

Keywords: Accusatory model. Law No. 13.964/2019. Evidence management. Subsidiary instruction. Impartial trial by the magistrate.