Emendatio Libelli: a (in)observância do contraditório e da ampla defesa

Abstract

This article deals with the (in)constitutionality of emendatio libelli. This word means the correction of the accusation. This procedural institute allows the magistrate to modify the legal classification of the criminal offense. It was already applied since Brasil Império, when the Criminal Procedure Code of First Instance of 1832 was in force. On this date, during the instruction of the ordinary procedure, the judge of law was allowed to formulate questions, according to the classification of the crime that he considered most appropriate, delivering them for the deliberation of the Jury Court. Over the centuries, emendatio libelli remained in the legal system. Currently, the emendatio is in effect in arts. 383 and 418, both from CPP/41, and in art. 437, item “a” from CPPM/69. It should be noted that there is a discussion about the emendatio libelli, applied in the common criminal process, questioning whether the magistrate, before modifying the legal classification, should, or not, grant a view to the parties. According to the mainstream, it is understood that, if there is a change in the classification of the crime, there is no need for a hearing from the parties, arguing such an understanding in the iura novit curia; da mihi factum, dabo tibi jus. However, the minority current correctly defends the need for the parties to be heard, since the Democratic Rule of Law must prioritize human dignity, respecting all of its fundamental rights, highlighting the right to be heard, to ample defense and others.