Processo penal e imparcialidade: a contaminação do juiz na fase de investigação criminal sob a perspectiva da teoria da dissonância cognitiva

Abstract

The present work sought to determine whether the participation of the judge in the preprocedural phase compromises his impartiality to act in the procedural phase. For that, the bibliographic review was used as a methodology, as well as the deductive method. The starting point of this study was the analysis of the construction of criminal procedural systems in order to verify their origins and if the guarantee of the judge's impartiality is linked to all of them. After that, a theoretical classification of the systems was made in order to have clear the characteristics of each one. Having knowledge of both the historical and theoretical perspective of existing models, it was possible, then, to enter into the identification of the criminal procedural system adopted by the Federal Constitution and to verify if it is a structure that ensures the impartiality of the judge. From the analysis carried out, it was found that although the Magna Carta adopts the accusatory system, albeit implicitly, the Brazilian criminal procedure was divided into an inquisitorial pre-procedural phase and a procedural phase characterized as being accusatory, which is why there are those who state that the Brazilian system is mixed. However, from the criterion of the management of evidence, it was possible to perceive that the Brazilian procedural system is, in fact, in its essence, inquisitorial, or rather, neo-inquisitorial, due to the possibility of the probationary initiative by the judge, expressly provided for by the Code of Procedure. criminal. By noting that, while impartiality is an indispensable guarantee for the accusatory system and that, on the other hand, it is not consecrated by the inquisitorial system, it was possible to conclude, therefore, that the very existence of a preliminary inquisitorial phase, by itself, already compromises the impartiality of the judge who acts in the respective stage and, later, in the following one. But beyond that, the compromise of the judge's impartiality in the preliminary stage could also be demonstrated by means of social psychology, more specifically, by the Theory of Cognitive Dissonance