O ARTIGO 385 DO CÓDIGO DE PROCESSO PENAL À LUZ DA JURISPRUDÊNCIA DO SUPERIOR TRIBUNAL DE JUSTIÇA

This paper aims to analyze the jurisprudential stance of the Superior Court of Justice regarding Article 385 of the Code of Criminal Procedure, which allows judges, in cases of unconditional public action crimes, to issue a convicting sentence even if the Public Prosecutor's Office has advocated for acquittal, as well as to recognize aggravating factors that were not previously alleged. The study begins by exploring the historical origins of the CPP, established in 1941 during the authoritarian Estado Novo period, and highlights the implications of this provision concerning judicial impartiality and the presumption of innocence. By reviewing legal doctrine and case law, the paper assesses divergent views on the constitutionality of Article 385, including criticism that it undermines the separation of powers between accusation, defense, and judgment, thereby compromising judicial impartiality. Conversely, the paper supports the possibility of its application in exceptional circumstances, provided that it is adequately substantiated by robust evidence. The methodology employed includes jurisprudential and bibliographic research, particularly specialized doctrines in criminal procedural law. The research concludes that while Article 385 may be compatible in specific circumstances, it requires revision in light of the principles of the Democratic Rule of Law to ensure the protection of fundamental rights and the integrity of the criminal process.