Inconstitucionalidade da correção da denúncia por orientação de despacho fundamentado do juiz (§1º do art. 78 do Código de Processo Penal Militar)

Abstract

The present work aims to question the application of §1 of art. 78 of the Military Code of Criminal Procedure, evidencing its unconstitutionality before certain principles brought about by Fundamental Principle of 1988. The rule in question, by allowing the judging body to encompass the accusation, indicating to the Public Prosecutor to “correct” it or to complement it, unquestionably harms the functional independence of the Parquet, the impartiality of the Judge and the due process of law, offending, as well, the rector principles of the three main actors of the military criminal procedure. Although unanimously accepted in the jurisprudence and doctrine, on behalf of procedural economy, it is demonstrated that this legal possibility is inapplicable in view of the current constitutional system, since it signifies the adherence to the simplistic maxim that the ends justify the means, even if it indicates brutal injury in principle of extreme magnitude, in the course of criminal persecution.