It is up to the magistrate to maintain a position equidistant from the parties

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anik4500
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It is up to the magistrate to maintain a position equidistant from the parties

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Guarantee the necessary impartiality so as not to compromise the adversarial process, due legal process and the inertia of the jurisdiction." For her, not even the "prior exercise of the accusatory claim" — expressed by the MP when making the complaint — legitimizes a conviction if the body later decides for acquittal. TJAC Agency In the adversarial system, the functions of accusing, judging and defending belong to different actors Agência TJ-AC "If the prosecution makes a request for acquittal, it means that a conscious decision was made not to continue with the criminal prosecution, as the necessary conditions for conviction were absent", points out the lawyer. The judge cannot, according to her, "exercise punitive power without the necessary provocation". André Luís Alves de Melo , prosecutor in Minas Gerais, also understands that the STJ's decision "disregards the accusatory system".

Using an analogy with article 28 of the CPP, he says that, in cases of a request for acquittal by the MP and disagreement by the Judiciary, theoretically it would be necessary to forward the case to the Attorney General of Justice. In any case, Melo argues that, if the prosecution itself considers it does not have sufficient evidence and the defense agrees with the thesis, at the very least it is the case of applying the principle in dubio pro reo — that is, based on the existence of doubt, favoring the defendant and acquit him. Inquisitorial system The president of IBCCrim explains that Schietti admits the exist Chinese American Phone Number List ence of "inquisitorial features" in the Brazilian criminal process and "tries to deal" with them. An example would be article 385 itself. According to the arguments of the STJ minister, the judge can overcome a request for the MP's acquittal in exceptional situations. But for this to happen, a reinforced foundation is needed. In his vote, the judge said that the judge needs to "present the factual and legal reasons for which he believes the conviction is appropriate and refute not only the grounds raised by the defense, but also those invoked by Parquet in its final arguments, in order to demonstrate the mistake of the ministerial manifestation".

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Vieira emphasizes that Schietti's theoretical conception is respectable, but, even so, he considers that the position "confronts the distribution of functions and actors in the criminal process". For him, the suggestion to reinforce the reasoning and the addendum regarding the exceptional nature of the measure, indicated in the minister's vote, do not solve the problem. "There is no burden of argument that can overcome the finding of a conviction without a request by someone who has the constitutional mission to file a criminal action", says the lawyer, who classifies this situation as a "usurpation of the role of accuser". He joins a movement that proposes overcoming inquisitorial features in criminal proceedings. In other words, Schietti assumes permanence and seeks to establish a coexistence with these traces. The opposing school understands that it is better to “not try to accommodate them”. Institutional conflict The STJ judgment was about a prosecutor convicted of the crime of concussion.
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