Neoconstitucionalismo(s) e os poderes instrutórios do juiz: uma defesa do princípio dispositivo e da racionalização da produção da prova

Abstract

There are many doctrines that see procedural law as an instrument for implementing justice and implementing legal and, often, meta-legal scopes. These doctrines, here called instrumentalist, currently seek support in neoconstitutionalist ideas, which tend to influence the way the process is seen and handled. The research worked with the hypothesis that the instrumentalist perspective of the process is not the most appropriate to the current Brazilian constitutional paradigm, which affirms due legal process among the first generation fundamental rights, a counter-jurisdictional guarantee, which demands a self-contained judge's reading. In this sense, in the present study, we sought to first analyze the instrumentalist doctrines in force in Brazil, with a view to re-discussing the neoconstitutional paradigm of the fair process and the search for truth, to, in a second moment, defend a re-reading of the process from the perspective of non-Ferrajolian guaranteeism perspective. The relevance of the research lay in the fact that it was necessary to concretely establish the limits and possibilities of judicial action during the investigation of the case. The theoretical framework used, of guaranteeism, as constitutional dogmatics of the process, advocated by authors such as Alvarado Velloso, Montero Aroca and, in Brazil, by Eduardo José da Fonseca Costa, Lúcio Delfino, Antônio Carvalho Filho, among others, led to some conclusions regarding the way the instructive powers of the judge are addressed, more in line with the guarantees of impartiality (both subjective and objective), the adversarial process and the burden of proof, with the need for the magistrate to respect the procedural legal transactions that delimit evidence also being highlighted. The method adopted in this work is descriptive, using legal bibliography, of a qualitative nature, with the aim of treating the topic coherently, avoiding syncretic approaches.