Emendatio libelli e a sua (in)compatibilidade com as garantias constitucionais do contraditório e da ampla defesa

Abstract

Majority doctrine and jurisprudence has always argued that the emendatio libelli, provided for in art. 383, of the CPP, to be applied, does not depend on prior opportunity to exercise the adversary, on the grounds that the defendant defends himself against the alleged facts and not the initial classification of the crime. However, a minority doctrinal current has arisen, claiming that the defendant defends himself, not only from the facts, but also from the relevant legal matters that may affect his libertatis status. Thus, the application of the institute would depend on prior concession of opportunity to exercise the adversary, in addition to its conformity with the guarantee of the defendant's broad defense. Hence the importance of the theme, since the application of art. 383 from CPP is recurrent in forensic activity, motivating the present study which aims to discuss the emendatio libelli and its (in) compatibility with the constitutional guarantees of the adversary and the broad defense, pointing out the possible solution to the problem.