LIMITS TO DECISION IN CRIMINAL PROCEDURE: THE UNCONSTITUTIONALITY OF THE DAMNING SENTENCE IN VIEW OF THE ABSOLUTORY REQUEST MADE BY THE PUBLIC PROSECUTOR

Abstract

The aim of this research was to confront the unconstitutionality of the criminal sentence in view of the absolutory manifestation by the Public Prosecutor, and, consequently, the incompatibility between article 385 of the Code of Criminal Procedure and the Republic’s Constitution of 1988. This is because, from the legal-procedural construction of the Democratic State of Law, several provisions still present in the Code of Criminal Procedure, as a result of its historical-political conception, do not fit with the current constitutional order. Based on the hypothetical-deductive method, the legal literature and jurisprudence were reviewed to conclude that article 385 of the Code of Criminal Procedure violates the democratic procedural established in the Republic’s Constitution of 1988, mainly because of the mitigation of the impartiality of the judgment, the inertia of the jurisdiction and the separation of the functions established to the procedural subjects.

Keywords

• criminal procedure
• democratic procedural
• damning sentence
• absolutory request
• public prosecutor