ATIVISMO JUDICIAL E A PRODUÇÃO DE PROVA EX OFFICIO PELO JUIZ: aspectos constitucionais

Abstract

This work addresses the issue of the activity of the Judiciary and the limits estab-lished by the Federal Constitution. The performance of the impartial magistrate is fundamen-tal for us to have a fair trial and all our constitutional rights guaranteed. We will demonstrate what has been happening in practice within the judiciary that is focused on criminal procedural law, and what are the consequences that an unjust conviction, an arbitrary judgment, can have on society and on the individual in the particular case. In order to do this, it is necessary to address the existing criminal procedure systems and the one adopted by Brazil, the guiding principles of criminal procedural activity, the con-stitutional guarantees provided for in our major law, and the unconstitutionality of Article 156 of the Criminal Procedure Code. Nowadays, it is possible to notice the active action of the Judiciary in front of the other powers, breaking the barriers of its competence imposed by the Constitutional text, so it is necessary to discuss about this subject. Is the judiciary extrapolating its powers? The pur-pose is precisely to show how the Judiciary has done and how its no-rational decisions have influenced the principle of separation of powers. The concern with this active position of the Judiciary is due to the fact that it is re-sponsible for the resolution of conflicts of the whole society, but if it is in conflict with its own principles, competence and with the other powers of the republic, Executive and Legisla-tive, is it possible to say that he will be impartial and careful if at any time you need to use legal means to guarantee your rights? Most likely not. The judiciary is the guardian of the Federal Constitution and must ensure the effec-tive application of the larger law, which is the first to act according to the precepts established therein.