Modelo acusatório: perspectivas diante do princípio da inafastabilidade da jurisdição e do sistema de freios e contrapesos

Abstract

The present work aims to identify the accusatory model from a constitutional perspective, based on the principle of the inafastability of jurisdiction and the system of checks and balances. To this end, it analyzes whether the choice of the Brazilian criminal procedure model results from a political decision by the constituent power or from the action of the ordinary legislator, as exemplified by the provision in Article 3-A of Law No. 13,964, of December 24, 2019. It examines the magistrate’s power to act ex officio as a consequence of the judge’s atypical functions, understood as a natural element within the checks and balances system of an accusatory criminal procedure structure, intended to prevent potential abuses by the prosecuting authority. Since its enactment, the Brazilian Code of Criminal Procedure has adapted to various phases of constitutional history. The constitutional orders of 1937 and 1967/1969 established an authoritarian state in Brazil, while the Constitutions of 1946 and 1988 marked the country’s return to democracy. The system of checks and balances is employed to safeguard rights and guarantees in criminal procedure, ensuring a fair and legitimate accusatory process, characterized by the independent and harmonious roles of the prosecutor, the defendant, and the judge.