Decisão justa: o poder instrutório do juiz e a produção probatória no segundo grau com garantia da imparcialidade

Abstract

The research analyzes the exercise of the judge’s evidentiary powers at the appellate level as an instrument for the realization of justice and the attainment of probable truth, while examining its compatibility with the principle of impartiality. It is based on the premise that the judicial function requires the magistrate not only to apply the law to the specific case, but also to pursue the factual reconstruction of events in order to ensure decisions that are fair and consistent with reality. The methodology adopted is deductive, grounded in the analysis of current civil procedural legislation, legal doctrine, and case law, aiming to identify the limits and legitimacy of the judge’s ex officio role in the production of evidence. The study finds that the 2015 Code of Civil Procedure, in Articles 370 and 938, §3, authorizes the judge, including at the appellate level, to determine ex officio the evidence necessary for the judgment on the merits. However, it is observed that, in practice, the courts rarely exercise such powers, limiting themselves to the evidence produced in the trial court, which weakens the formation of judicial conviction and undermines the achievement of justice. In this context, the judge’s evidentiary initiative, when guided by the principles of adversarial proceedings and ample defense, does not compromise impartiality but rather reinforces it, as it seeks to balance inequalities between the parties and ensure that the judgment is based on sufficient and reliable evidence. Furthermore, it is shown that the production of evidence directly by the appellate court, whether by the rapporteur or the panel, not only preserves the neutrality of the trial court, avoiding the undue remand of the case, but also enhances the speed and effectiveness of judicial protection. It is concluded that strengthening the judge’s evidentiary powers at the appellate stage is an essential measure for the realization of justice, reaffirming the magistrate’s role as a guarantor of the public interest and impartiality in judicial activity.