Our Brief General Theory of Criminal Procedure , prefaced by Professor Celso Delmanto, preceded by a trilogy launched in 1984, was published unified in 1987 by Editora AIDE with the title Manual do Processo Penal . Before the launch of the trilogy, Editora Síntese published the book Nulidades do Processo Penal, written during the last year of Law School. It was the study of the general theory of the process that provided us with sufficient knowledge to better understand and interpret the criminal procedural norm. Without knowledge of the TGPP it is impossible to satisfactorily interpret the criminal procedural law. Those who focus their studies on courses in criminal procedural law or in jurisprudence, without supplying themselves with TGPP and good works of introduction to the study of the science of law, will know how to speak about jurisprudential currents and subcurrents, doctrinal theories on different topics, but will be unable to to create an original and well-founded legal thesis, however simple it may be, or appear to be. We identify a lot with the phrase said by Celso Delmanto in that preface: “Treating the theme in a commendably uncomplicated way, Flavio Meirelles Medeiros not only makes it easy to understand the notions he exposes, but also reveals how attractive the study of Criminal Procedural Law is.” Simplicity and objectivity represent values constantly sought in our texts. Schopenhauer divides the forms of writing into three: 1. short sentences, which mean more than they say; 2. the one that resorts to a torrent of words, with unbearable prolixity; 3. the scientific and profound style, in which the reader is martyred by the narcotic effect of long and tortuous periods. He claims that the art of writing consists in summarizing many thoughts in a few words, and not the other way around, many words communicating a few thoughts. Lawyer Nadir Mazloum synthesized, in an article published in CONJUR, what we think about the subject by stating that the three main defects of writing are interdependent and reciprocally maintain each other: to be obscure, one must be, at the same time, pedantic and long-winded; by being prolix, it becomes obscure and pedantic; and, by being pedantic, it becomes, fatally, verbose and obscure. Our goal is to convey what we think in the simplest way possible to make us understood by a greater number of people. Therefore, we use short sentences and give preference to familiar words. We don’t actually say everything we’d like to say. If we tried to do that, we would lose, in addition to clarity and objectivity, our own patience. There are implicit ideas in certain notions that we expound, which the reader can deduce. If we are clear and manage to contribute to building a penal repressive system a little better than the existing one, we are already satisfied. Perhaps it is too much to say, but at our age, we believe, it is the most appropriate claim we can make.
Foreword by Professor Celso Delmanto
For many years, among us Brazilians, there has been a regrettable mismatch between research focused on Criminal Procedural Law and those dedicated to Civil Procedural Law.
The latter receive preference from scholars, while the others are, at least from a quantitative point of view, unfairly relegated to the background.
I do not mean by this that there are no valuable criminal proceduralists among us. They are, however, in much smaller numbers than their civil counterparts, in view, precisely, of the disproportion between those dedicated to the cultivation of one and the other of these two fields.
Thus, we have a criminal procedural literature in Brazil that is very poor in number, but endowed with several valuable works.
It would be easy to suggest the most diverse causes to try to explain this inequality, although, in reality, there is not a single one that can validly justify it.
Therefore, it would already be a source of satisfaction for me to find an author, still young, totally dedicated to the study of Criminal Procedural Law and sincere supporter of the dualist school.
That is not, however, the reason that led me to write these lines, as a preamble to the book Noções Iniciais de Direito Procedural Penal: the work is serious, the language is clear, the didactics are objective.
Without making it difficult for the reader with the enumeration of successive doctrinal currents and subcurrents or burdening the work with a copious bibliography, the author fully achieves his goal – expressed in the title of the book itself – of transmitting the basic notions of the noble discipline.
Dealing with the subject in a commendably uncomplicated way, Flavio Meirelles Medeiros not only makes the understanding of the notions exposed by him easy, but also reveals how attractive the study of Criminal Procedural Law is.
Therefore, I hope that the reading of these initial notions will awaken other vocations and attract more interested people to research a subject that is so important, but which is so abandoned.
And I am convinced that the young writer will remain faithful to his firm dualistic vocation, dedicating himself more and more to the study and dissemination of criminal procedure.
São Paulo, August 1984.
* Eldest son of founder Dante Delmanto, continued the firm. For 29 years he worked, always in the criminal area, in all the Courts of the country. Owner of vast legal culture, great power of argumentation and exquisite writing, his arguments serve as a model for the new generations. Deeply knowledgeable of Supreme Court jurisprudence, he achieved real breakthroughs in apparently lost causes. Discovering gaps in internal regulations in favor of his clients, he had, on one occasion, the former Criminal Court of São Paulo change its the following year. He was one of the first criminalists to make use of the institute of the complaint, in favor of a former Minister of State, getting the Supreme Court, by usurpation of its competence, to request the process of the 1st Instance in which it ran (http://www.delmanto.com/historia_celso_port.html ).
Refer to: MEDEIROS, Flavio Meirelles. Code of Criminal Procedure Commented. https://flaviomeirellesmedeiros.com.br : 2019
MEDEIROS, Flavio Meirelles. Criminal Procedure Handbook. Porto Alegre: AIDE, 1987
CHAPTER 1 – NOTIONS OF LAW
Day to day
The alarm clock jolted him out of a deep sleep. He spent a few seconds looking around, trying to identify the self in memory and, in space, its location. The monotonous drizzle in the street gave the beginning of the day a promise of peace.
I had to arrive on time to clock in. She lazily dragged herself to the closet. She got dressed. Not long after, at the stop, he hoped the one would take him to the job site.
He got on the bus, paid the ticket and took a seat next to the window. The vehicle was slow. Even slower as a result of the dozens of traffic lights that followed. It was traffic laws that gave stability to anarchy. It was organized and regulated chaos.
When he arrived at the destination stop, the sigh he gave filled the surrounding space and brought back the disapproval of some and the solidarity of other passengers.
With quick steps, he arrived at work. Siqueira was waiting for him with a message: “Roger, the Director is calling you. He wants me to go to his office immediately.” It was the warning, in a tone that couldn’t disguise malicious pleasure.
Sitting across from the Director, I waited for the end of the phone conversation, anticipating what would happen. At the end of the call, the Director turned to him and, with an air of disapproval, said:
– It’s not possible! Let it be the last delay!
need of right
Where man is establishing social relationships, there is also the right. Our character woke up at that time due to labor laws, as he did not wish to have his salary reduced. He got dressed so as not to go naked on the street, that is, so as not to infringe the penal norm that typifies “obscene act”. He paid for passage under a civil transport contract. And he arrived late at the workplace due to traffic lights, that is to say, he was late due to traffic laws.
Man only dispenses with the right when isolated. So lived Robinson Crusoe. On that island, he owed nothing to anyone and could demand from no one. He didn’t depend on others. The limits of his freedom were limited only by nature. In society, the law is presented as an essential requirement. Where there is more than one person, relationships occur. Economic, social, cultural, political relations. In plurality, individuals have to share the work to achieve common goals of well-being and development. An organization with stable molds is essential. Without stability there is no security and without security there is no well-being. In times past, it was up to religion to ensure social organization. Today, less devout men, the function of giving stability to the organization belongs to a set of imposed norms whose observance is coercively demanded by the State. These norms are the law.
The term “right”
The word right comes from the Latin verb dirigire , which means to direct, straighten. Etymologically it translates the idea of rule, of direction, of what is straight. In France it is droit , in Spain it is derecho , in Italy it is diritto, and in Germany it is recht .
The Romans called law jus , and justitia represented a quality of law (GUSMÃO, Paulo Dourado de . Introduction to the science of law . 7. ed. São Paulo, Forense, 1976, p. 71 ).
In common parlance, law is one of those expressions which has been given countless uses. It lends itself to representing the usually more skilled side of the body. To describe the man and his conduct. Honorable, frank, sincere man. Correct conduct.
Understood as a science, law is the methodical and systematic knowledge of the norms that make up the legal system.
Positive law is an expression used to oppose natural law. It was created with the advent of jusnaturalism , to oppose and distinguish itself from it (GUSMÃO, Paulo Dourado de. opus cit . p. 76). Law, in its positive aspect, is the set of norms of the legal system and the subjective rights that result from them. It covers objective and subjective law.
Objective law is the set of norms that make up the legal system and that arise from the sources of law. Objective law, also called normative law ( norma agendi ), aims to regulate human activity in its various expressions.
Subjective law is an aspect of objective law. There is no subjective right without the objective, since the former stems from the latter. The subjective right is the possibility to act. It is born when the hypothesis foreseen in the norm occurs in the material world.
For a better definition of concepts, and using criminal law for this purpose, since these concepts have clearer contours, let’s see what criminal law science, objective criminal law and subjective criminal law mean.
The content of criminal law science was described by the penalist Aníbal Bruno: “it is that area of knowledge whose purpose is the systematic elaboration of the principles that govern penal norms. The science of criminal law is this dogmatic or legal-criminal system that does not exhaust itself in the pure logical-formal inquiry, but that feeds on the social reality and the phenomenal aspects of the crime” (BRUNO, Aníbal. Direito Penal. 3. ed. Rio de January, Forensic, 1978. tome I. p. 40).
Objective criminal law, on the other hand, is that complex of norms that regulate the State’s right to punish. Norms of this type are those that describe crimes, that impose penalties, that foresee extinctive causes of punishment, etc.
Subjective criminal law is either the State’s right to punish or the citizen’s right not to be punished. That one is born with the practice of crime. Occurring that “A” takes the life of “B”, without his conduct taking place in competition with an excluding cause of unlawfulness or guilt, the subjective criminal right to punish “A” arises for the State.
On the other hand, the subjective criminal right not to be punished, which without much rigor can be called the right to freedom, arises with birth and subsists as long as the individual does not commit an act defined as a crime in criminal law.
Subjective right presupposes objective right, and vice versa.
Continuing this study of the ways in which law is understood, we come across the so-called natural law. The conception of natural law is ancient. The Romans understood it as the common right of all, men and animals. The Scholastics found their nature in divine reason. Currently, natural law is more commonly seen as “the set of principles imposed on the legislation of educated peoples, founded on reason and equity, to regulate and ensure individual rights, such as those of life, liberty, honor and of all patrimonial rights, which ensure the very existence of man” (PLÁCIDO E SILVA. Legal vocabulary . 4. ed. Rio de Janeiro, Forense, 1975. In Natural Law) .
Orlando Gomes, in his work “Introduction to Civil Law”, lends a few lines to natural law to say that it is outside the borders of law. It considers natural law, at most, a chapter of Morals (GOMES, Orlando. Introduction to civil law . 5. ed. Rio de Janeiro, Forense, 1977. p. 18).
It is also of interest to these brief “notions” to make some considerations about the qualities of the law, namely, its validity, effectiveness and enforceability.
A valid right is one that is legally established. That is, one that was prepared according to the rules that regulate its production.
Validity of the law is its legal existence. Validity is the time during which the norm remains producing legal effects. The effectiveness and validity of the rule cease with the revocation.
Enforceability of the right is the possibility of putting it into practice. The most diverse rights guaranteed to prisoners by the Law of Penal Executions are unenforceable, because the State does not provide the necessary means to exercise them. They are the rights to material, health, legal, educational, social and religious assistance. In the case of penitentiary law, the only enforceable law is the State’s right to execute the sentence.
CHAPTER 2 – CRIMINAL PROCEDURAL LAW AS A BRANCH OF PUBLIC LAW
Purpose of distinction
Law is divided into two major branches: public and private. Some authors, such as Gustavo Radbruch, understand that these categories are a priori of law. Others, and these currently constitute the majority, maintain that the division is acceptable only because of the technical and didactic aspect (GOMES, Orlando. opus cit . p. 23).
The importance of the distinction, from a technical point of view, is that the principles that inspire one branch are different from those that integrate the other. It is necessary to determine whether the norm is public or private law so that its interpretation and application can be complemented with the principles that are appropriate to it.
The doctrine is almost peaceful when it denies the possibility of identifying a valid criterion capable of distinguishing with certainty one branch from the other. Due to this difficulty, Tornaghi notes that there are those who deny the value of the classification and those who disallow any difference between the two branches of law.
Broadly speaking, these are the commonly proposed distinction criteria:
1st – that of interest;
2nd – the nature of the relationship;
3rd – the power of will of the parties over the norm.
The division of law into public and private by the criterion of interest comes from the Romans. It is by Ulpian and is expressed in the Institutes of Justinian: “Publicum just est quod ad statum rei romanoe spectat; privatum quod ad singulorum utilitatum” (CRETELLA JUNIOR, J. Curso de Direito Romana . 5. ed. Rio de Janeiro, Forense, 1973. p. 182). It is a teleological criterion. The public has the purpose of regulating the organization of the Roman republic or the Roman thing, and the private, the utility of individuals.
By the criterion of interest, public law is formed by norms of public interest, those whose regular scope is the interest of the community; and private law, by the norms that interest individuals.
One of the scholars who was concerned with defining the public interest was the jurist Paulo Dourado Gusmão. Noting that the question is difficult to resolve, he proposed some definitions: it is the interest of the State and legal entities governed by public law, as well as the interest of all without being of any one in particular. It is the interest of the States and the aforementioned persons, as long as it is linked to the functions, specified by law, assigned to them by legislation; of the State as tax; of the State as guarantor of public order; of the State as an organization, as a promoter of the good of all and the enjoyment of common goods by all, in short – Gusmão continues – linked to the functions, powers and state competence, provided for by law, which, by law, can be transferred to other legal entities governed by public law (GUSMÃO, Paulo Dourado de. opus cit.. p. 182).
Criticism of the interest criteria
Like the other criteria, that of interest is not exempt from criticism (MAYNEZ, Eduardo Garcia, Introduccion al Estúdio del Derecho. 26. ed. Mexico, Porrúa, 1977, p. 132.). The first is that the distinction is vague because the concept of public interest is vague. The second is that the existence of public interest in all the norms that make up the legal system is undeniable. When the norm is enacted and guaranteed by the State, it is because there is a public interest in it. Objecting to the value of the criterion of interest, Garcia Maynez, with great perspicacity, commented that the most serious aspect of the theory is due to its proposing a criterion that intends to have an objective value using an essentially subjective notion. Having an interest in something – writes the professor – means attributing value or importance to its realization and from this results the interest in a subjective element (MAYNEZ, Eduardo Garcia, Introduccion al Estúdio del Derecho. 26. ed. Mexico, Porrúa, 1977, p. 132).
Criterion of the nature of the relationship
More recently, the theory of the nature of the legal relationship to distinguish the public from the private branch. According to this doctrine, law is public when it regulates a relationship of subordination in which the State necessarily participates as a party. Not that the simple presence of the State in the legal relationship is enough, since the State is a party in private law relationships when it is in a position of equality with the other subjects of the relationship. According to the thesis, for the legal relationship to be public and the law that regulates it public, it is necessary for the State to participate in it as a sovereign State with an “ imperium ”.
Criticism of the criterion of the nature of the relationship
The shortcoming of this theory is that it does not sufficiently clarify which parameters must be considered in order to determine whether or not the State participates in a relationship. Is there State participation in those family law relationships in which the public interest is clearly present? Another flaw is the lack of a criterion that establishes whether the State’s participation in a relationship takes place with or without sovereignty.
Criterion of device power over the norm. Criticism
There are also those who intended to differentiate the two branches considering the dispositive power of the parties over the norm. According to them, the norms of private law would be those that can be left aside in the application, when the parties so agree. Those of public law would be irrevocable. The defect of this doctrine is that many norms belonging to private law are not available to the will of the parties when applying them. And the same happens with those of public law, when some are available. An example of this second hypothesis is the institute of forgiveness, which removes the application of criminal law in certain crimes.
Public and private law are those composed respectively of the rules of public law and private law. When there are norms of public law within family law or of private law in procedural law, what is observed is that norms of a public nature, not very rarely, invade lands in which the supremacy is of private norms, and vice versa. -versa. It is not the position of the norm in legal texts that lends itself to tracing its nature.
Notwithstanding the long-standing criticisms directed at the doctrine of interest, it seems that it is still the most reasonable to differentiate the norm of a private nature from the public one and, consequently, to establish what is public law and what is public law. Private right. Undoubtedly, all norms contain the public interest. But this circumstance does not prevent the distinction of the two branches by the criterion of interest, since what must be investigated in the norm is the prevailing interest .
Procedural law as a branch of public law
Before, when the civil procedure was seen as the right pleaded in it on a “war foot”, that is, when the process was understood as an externalization of the substantial right that is discussed in court, it was thought that the civil procedural law was nothing but a branch of private law. When the process began to be viewed as a legal relationship and the action as a right addressed to the State, distinct from the substantive legal relationship, the vision of procedural law as a branch of public law was made possible. In modern times, it is common ground that civil proceedings fall within the scope of public law. It is even more certain that criminal procedural law is public law. And for three reasons: (1st) the task of punishing criminals and guaranteeing the freedom of the innocent is in the direct interest of the State; (2) in the procedural legal relationship, the State acts as a sovereign entity, represented by the judge, to whom the jurisdictional function is conferred; (3rd) public agencies act in the procedural activity.
CHAPTER 3 – NOTIONS OF CRIMINAL PROCEDURAL LAW
Primitively, crimes were repressed at the hands of the offended person, his family members or the clan to which he belonged. It was the phase of private revenge. The existence, magnitude and form of this reaction, as Alfredo Mariconde writes, depended exclusively on the will of the injured parties. Revenge knew no bounds. The law of the strongest prevailed. Minor offenses were severely and disproportionately repressed (MARICONDE, Alfredo Vélez. Estúdios de derecho penal procesal . Córdoba, Imprenta de la Universidad, 1956, tome II, p. 7.). At other times, due to the agent’s power and influence, the result was impunity.
As society was organized, the chiefs realized a major disadvantage of private revenge: its excesses caused the death of many, weakening the group. The philosopher Herbert Spencer, in his work “Justice”, in the chapter that deals with the duties of the State, observed that “the rude administration of justice through private struggles was transformed into the public administration of justice, not because of the solicitude that the sovereign felt for the equity of social relations, but, much earlier, to prevent the social weakening resulting from internal dissensions”. The disagreement between two individuals grew to become a war between families, which lasted indefinitely, driven by a vengeful feeling.
Private revenge found limits in the law of retaliation and composition. The talion law, “an eye for an eye, a tooth for a tooth”, although it may seem the opposite, meant a big step towards the humanization of criminal repression. The talion imposed limits on the offended person’s reaction. This one could do no more harm to the offender than the harm he had suffered. In the first phase, that of private revenge, a death could be avenged with the decimation of an entire family. With the talion, one death is redeemed with another.
Composition is also presented as a substitute institute for private revenge. The conflict was resolved by composition when the victim or his family received goods or money as compensation for the crime suffered.
In a last phase, the conviction is established that the punishment of crimes is in the general interest of the community, and thus justice becomes a state monopoly. The State prohibits individuals from executing justice and, consequently, assumes the duty to do and distribute it.
This power to judge the State needed to offer security to citizens. Crimes could not be punished anyway. Social conscience demanded proof of guilt, the possibility of defense, the impartiality of the judge and other guarantees. It was from these collective demands that the process norms were born. These are the norms that regulate the way in which the State executes justice.
Not long ago, procedural law norms were contained in the same texts that dealt with substantive norms. Criminal procedural law was a set of accessory rules of criminal law. That one belonged to this one. The first Criminal Procedure Code came into force in 1811 (Code d’instruction criminelle), promulgated by Napoleon.
Criminal procedural law can be conceptualized taking into account three aspects: the scientific, the objective and the subjective.
Criminal procedural law science is the systematic and methodical knowledge of the norms that govern criminal procedure and the principles that inspire them.
Objective criminal procedural law is the set of norms of the legal system responsible for the regulation of criminal procedure.
Subjective criminal procedural law is the possibility of the subject of the process to act, guaranteed by the criminal procedural law.
fundamental and complementary
In Brazilian law there is a fundamental criminal procedural law and a complementary one. The first is in the Criminal Procedure Code (Decree-Law No. 3689, of October 3, 1941), which came into force on January 1, 1942. This Code is divided into six books. The books, in turn, are divided into titles. And these in chapters. The first book deals with the process in general. These are the preliminary provisions, the police inquiry, the criminal action, the civil action, the competence, the issues and incident processes, the evidence, the parties, the arrest and the provisional freedom, the citations and subpoenas, the provisional application of interdiction of rights, security measures and sentencing. the second bookdeals with procedures in kind, common, special and those under the jurisdiction of the courts. The third book contains provisions on nullities and appeals. The fourth book deals with execution; the fifth , on jurisdictional relations with foreign authority, and the sixth contain general provisions.
Parallel to the Code of Criminal Procedure there is the complementary criminal procedural law, constituted by extravagant laws. Among these, the following may be mentioned:
Law 5256/1967 – Special Prison
Law 8137/90 – Crimes against the tax order
Law n. 9099/95 – Special Court Law
Law 9613/98 – Money Laundering Crimes
Law 11343/2006 – Narcotics
Law n. 11,419/2006 – Electronic Process Law
Law 12,850/2013 – Criminal organization
Law n. 13,869/2019 – Abuse of authority
The Code of Criminal Procedure has a subsidiary character in relation to these laws that regulate special procedures. The precepts of the Code apply to special processes when they are not regulated differently. On the subject, writes Eduardo Espínola Filho: “the subsidiary character of codification is emphasized, whose observance is imposed, but only then justified, when the peculiar laws of such processes, expressly safeguarded, do not outline a regulation different from the common one, embodied in that Code” (ESPÍNOLA FILHO, Eduardo. Code of Brazilian penal procedure annotated . 5. ed. Rio de Janeiro, 1976. ref. No. 15).
CHAPTER 4 – DENOMINATIONS
importance of the theme
The name procedural law, given to the branch of the legal system composed of the rules that regulate the beginning, progress and end of the judicial activity that aims to resolve disputes, is relatively recent. Cintra, Grinover and Dinamarco stressed that the analysis of the various names proposed for that legal science is not irrelevant, as they reflect different stages of procedural evolution (CINTRA, Antonio Carlos de Araújo; GRINOVER, Ada Pellegrini and DINAMARCO, Candido. General theory of the process São Paulo, Revista dos Tribunais, 1976. p. 19).
When procedural law boiled down to a sequence of acts, when its content was exhausted in the external aspect of these acts, when it lacked scientific autonomy and the study of the internal links that bind the subjects of the process, it was called forensic practice, judicial practice, regiment of judges and other names that demonstrate ( id. ibid . p. 19) the merely ritual vision that was reserved for him.
The term “legal law”
The name judiciary law revealed some progress towards a scientific view of the object of procedural science ( id. ibid . p. 20). But it did not, for the reason that it has some drawbacks:
1st) reveals only one of the subjects of the procedural relationship (the judge), when it is known that the process develops with the participation of others;
2nd) procedural law could be confused with a modality of customary law produced when administering justice (CASTILLO, Niceto Alcala-Zamora: LEVENE HIJO, Ricardo. Derecho procesal penal . Buenos Aires, Guillermo Kraft, sd tomo I, p. 32).
This denomination, judicial law, ended up being reserved to identify those norms that organize the Judiciary Power and govern its operation. The internal regulations of the courts contain typical norms of judicial law.
Judicial law is part of procedural law. It represents that static part of procedural law. The content of this is greater, it is not limited to the organization and functioning of the Judiciary. It goes further, to regulate the procedural dynamics constituted by the acts of the parties and the judge.
Other names were and still are used to distinguish procedural law from substantive law . Formal or instrumental right to oppose material law . Adjective right as opposed to substantive right .
Formal law because it regulates the way in which the rule of substantive law is enforced in court. Instrumental law because it serves as an “instrument” for the realization of material law.
These denominations, formal and instrumental law, can be used by whoever needs them, but not definitively , as they do not have the power to express all procedural law, which does not only establish “forms”, but also includes rights, duties, relationships and legal situations.
And why procedural law? First, because the expression, spread by German influence (CINTRA, GRINOVER and DINAMARCO. opus cit . P. 20), is the most generalized. But this reason is not enough. There is a second reason that justifies the convenience of the expression: from a historical point of view, it is the one that best indicates the scientific character of the discipline.
CHAPTER 5 – INSTRUMENTALITY
The instrumentality of procedural law derives from the fact that its norms serve as a means for the application of substantive norms. Not that material norms are not also instrumental. They are, as Grinover perceives, in the same proportion that they serve as an instrument to resolve disputes. However, the instrumental nature of the procedural norm proves to be much more significant.
The treatise writer Giovanni Leone contemplated the instrumentality of procedural norms taking into account no less than five aspects: the historical, the systematic, the strictly legal, the social and the psychological. Let’s see how he did it from the historical and psychological aspects.
From the historical aspect there is a logical pre-existence of criminal law over criminal procedural law. First there were the crimes whose penalties were executed by the offended person or his family members. Only then is the process for the application of penalties instituted.
The psychological aspect is that the party, when requesting the action of the Judiciary, does not want the mere contemplation of the jurisdictional activity with that succession of acts that is proper to it. He does hope for the solution of his request through the application of substantive law to the case “ sub judice ” (LEONE, Giovanni. Treaty of penal procedural derecho . Buenos Aires, Jurídicas Europa-América, 1963, v. I, p. 4 et seq. .).
The instrumental nature of the process is so significant that Hélio Tornaghi considers that a good criminal procedural law is the one that best lends itself to the application of criminal law, that is, it is the one that best lends itself to carrying out criminal justice with the application of punishment to guilty and absolution of the innocent.
Particular aspect of the instrumentality of criminal procedural law
In the criminal area, this instrumentality of the procedural norm has a characteristic that is very particular to it.
In the civil area, the substantive right can be exercised independently of judicial intervention. The debts contracted, the duties of the spouses can be, respectively, paid and fulfilled, without it being necessary to resort to the norms of civil procedure. In this area, the satisfaction of the substantive claim does not depend on the process.
The particular characteristic of the criminal procedural norm, to which we were referring, is its obligation or necessity . The instrumentality of the criminal procedural norm is absolutely necessary . The crime cannot be punished without the pre-existing process. The punitive claim of the State cannot be satisfied, the subjective right to punish the State cannot be exercised, the criminal law cannot be applied without applying procedural norms.
In conclusion, while the civil procedural norm is only instrumental, the criminal procedural norm is instrumental and absolutely necessary .
CHAPTER 6 – NEED AND IMPORTANCE
It was implied in the previous chapter that criminal law is as useful without procedural law as “feet without legs” (the comparison is due to the German jurist Eberhard Schmidt). Given the relevance of the subject, we will provide here a chapter for the need for the process.
Civil proceduralist Humberto Theodoro Júnior points out that one of the characteristics of jurisdiction is that it is a secondary activity . Secondary – says the writer – because, through it, the State coercively carries out an activity that should have been, primarily , exercised in a peaceful and spontaneous way, by the subjects of the legal relationship submitted to the decision (THEODORO JÚNIOR, Humberto. Process of knowledge . 2. Ed. Rio de Janeiro. Forense, 1978, volume I, p. 45).
Secondaryness is characteristic of civil jurisdiction . Never from criminal jurisdiction .
There is no punishment without judgment
In the criminal area, the nulla poena sine judicio principle prevails , which means that the sentence cannot be applied without prior process. A mere administrative or police activity is not enough for the application and execution of a sentence (MARICONDE, Alfredo Vélez. opus cit. Volume II, p. 16). No type of transaction between the agent and the State is allowed. Even if the accused expressly manifests his guilt and his desire to submit to the penalty, the State cannot, without the process, execute the right to punish.
The principle nulla poena sine judicio , inserted in most of the legal systems of civilized peoples, finds, in our system, protection in article 345 of the Penal Code, which typifies and sanctions the crime of “taking justice into one’s own hands”: “Doing justice by their own hands, to satisfy a claim, although legitimate except when the law allows”. The Romans already punished this crime, from which it is concluded that the protection of the principle is not recent.
exceptions to the principle
But there were and are exceptions to the principle. Historical examples of the infliction of a penalty without a trial without a trial are brought to us by Eugenio Florian: the so-called palatine procedure, by which the judge, in the event of a flagrante delicto, could impose a penalty without a trial; pacts on punishment between the judge and the accused that occurred in Naples (FLORIAN, Eugenio. Elementos de derecho penal procedural law. Barcelona, Bosch, 1993. P. 16).
Of the current examples of exceptions to the principle, Cintra, Grinover and Dinamarco remind us of the plea of guilty in English law; transaction ( bargaining ) in American law between the prosecution and the defense so that a lesser crime penalty than that imputed to the defendant is imposed (CINTRA, GRINOVER and DINAMARCO. opus cit. P. 13).
In the Brazilian criminal procedural system, there is the plea bargain that is provided for in some special laws, in which an agreement is made between the whistleblower and the Public Ministry. The whistleblower promises to provide evidence of participation in crimes against people who will be reported, and the Public Ministry offers benefits in terms of punishment to the whistleblower. All statements by the whistleblower, while isolated, are worth absolutely nothing.
There is also, in the special court, a hypothesis in which the Public Prosecutor’s Office may, if certain conditions are met, propose the immediate application (before offering the complaint) of a penalty restricting rights or fines.
The composition can be carried out, equally, by means of the agreement of non-criminal prosecution.
The penalty cannot be applied without a process, the process being the means by which the criminal law is applied to acquit the innocent and condemn the guilty, being in the process that the accused will have to claim his freedom, the importanceof criminal procedural law is that the effective and correct application of its norms represents an individual guarantee of the citizen. It is the guarantee that no one will be punished without the prior formation of guilt in court. It is protection against abuse. It is the rule of law “mistrusting itself”. Giving relevance to this notion of the process as an individual guarantee are the words of Ferri: “while the Penal Code is the law of criminals, to which it applies once their participation in the crime is proven, the Code of Criminal Procedure is the code of men honorable persons, who may, due to someone’s mistake or malice, be suspected of a crime” ( Apud RAMIREZ, Sergio Garcia. Curso de derecho penal procesal. 2. Ed. México, Porrúa, 1977. P. 13).
CHAPTER 7 – AUTONOMY
The emancipation of procedural law from substantive law is a relatively recent fact.
Hugo Alsina narrates that the Romans, faced with a concrete case, did not question whether they had the right, but whether they had the action. Right of action were concepts that were not distinguished in Roman doctrine (ALSINA, Hugo. Theoretical-practical treaty derecho procesal civil y comercial . Buenos Aires, Compañia Argentina, 1941, p. 41).
Not long ago, some jurists, including Carmignani and Carrara, in Italy, and Feuerbach and Grolman, in Germany, commented on criminal procedural law within the study of criminal law (FRAGOSO, Heleno Cláudio. Lições de Direito Penal . 3 ed. São Paulo, José Bushatsky, 1978. v. I, p. 9).
The first criminal procedure code only appeared at the beginning of the last century.
Currently, in Brazil, criminal procedural law has its own Code and is expressly individualized by the Federal Constitution which, in article 22, item I, safeguards the exclusive competence of the Union to legislate on the matter.
However, it should be noted that it is not exactly these normative aspects that underlie the discipline’s autonomy. The reason for autonomy is not that criminal procedural law has individualized treatment in the higher law or that it has a legal text that groups norms. These circumstances represent only symptoms of an autonomy that precedes them.
reason for autonomy
The reason for the autonomy of criminal procedural law lies in the fact that this science contains its own method and object. The method is technical-legal and the object is the criminal procedure.
The technical-legal method, as Maggiore clarifies, consists of three moments: exegesis, dogmatics and criticism. At first, the jurist interprets the legal provision to extract the principles it contains. Dogmatics comprises the organization of principles extracted with the exegesis of the institutes and the systematic coordination of these same institutes. In a last phase, the criticism, the value of certain principles contained in the legal system is inquired into consideration for the new demands of the social environment, object of the norms.
Autonomy from civil procedural law and criminal law
Criminal procedural law and civil procedural law cannot be confused. The principles that inform one and the other when they are not distinct, are presented in them with different form and intensity. Analyze the importance of the different consequences of the unavailability of the criminal procedure and the availability of the civil procedure and you will see how far the two sciences are apart.
If the autonomy of criminal procedural law vis-à-vis civil procedural law is easily perceived, its autonomy vis-à-vis criminal law is even more so. Between criminal procedural law and civil procedural law there are points of contact, even because they are branches of the same science that is procedural science. Some basic concepts of civil procedural law are applicable to criminal procedural law, so much so that, not infrequently, the student of criminal procedure resorts to civil procedural doctrine and vice versa.
Between the criminal procedural law and the law that is substantial to it, these transactions do not occur. Criminal law makes social life possible by protecting fundamental legal interests. It delimits the State’s right to punish and, consequently, protects the citizen’s freedom. The field of action of criminal procedural law is another. It regulates procedural relations that bind the subjects of the process. It is not concerned with the structure of the crime, but with other themes, such as competence, action, nullities, resources, etc.
CHAPTER 8 – DIRECT AND INDIRECT PURPOSES
What is the direct purpose of criminal procedural law? What are process rules for? The answer cannot be any other: the procedural norms aim to regulate the process itself. Criminal procedure is a set of acts whose form, time, place and succession are regulated by procedural law. This normative legal system regulates both the process in its external aspect, as well as, by reflex, in its internal aspect, which is constituted by a complex of rights and obligations contained in relationships and legal situations.
What purpose does this regulation of the process serve? We are asking what is the indirect purpose of criminal procedural law. The process is regulated so that criminal law can be applied with it. The application of criminal law is therefore the indirect purpose of criminal procedural law.
Certain beings do not dispense with the presence of others determined to achieve their goals. The purpose of the automobile, which is to transport, will not be achieved if the fuel runs out. It cannot be applied and achieve its purposes without the application of criminal procedural law.
Way to achieve the indirect end
And what should be understood by application of criminal law? Applying criminal law does not only mean punishing the guilty, it also means acquitting the innocent and guaranteeing their freedom. In order for criminal law to be applied, punishing the guilty and freeing the innocent, it is essential to seek the real truth . Pursuing the real truth about the fact, about the personality of the agent, about his antecedents, through the process, is indispensable for the application of the criminal law. The pursuit of the real truth is the way in which criminal procedural law achieves its indirect purpose (application of criminal law).
CHAPTER 9 – RELATIONS WITH CONSTITUTIONAL LAW AND OTHER BRANCHES OF LAW
Internment between the branches of law
The human body is a complex system between whose parts there is interaction and conjugation for the same purpose, which is life. With the law, what happens is similar. The legal system is divided into specialized branches that are interrelated with the same scope of organizing and regulating social life. This interpretation and interaction, observes Gusmão, makes it possible for the notions of a right established in one branch of the order to be used to determine the meaning of another contained in a different branch, thus avoiding useless repetitions. This phenomenon is quite clear in commercial law which, having roots in civil law, is used to complement its notions and concepts (GUSMÃO, Paulo Dourado de. opus cit.P. 241). As Theodoro Júnior explains, “the law, despite its division into autonomous branches, characterized by their own methods, objectives and principles, forms a larger set, which has in common the destiny of regulating social coexistence. that its branches are considered autonomous, there will always be some intercommunication between them, some common trait and even some dependence in certain angles or subjects” (THEODORO JÚNIOR, Humberto. opus cit. p. 6 ) .
Relations with constitutional law
According to Garcia Maynez, constitution can be understood in a formal sense and in a material sense. “ From the formal point of view, the word constitution is applied to the document that contains the norms related to the fundamental structure of the State; from the material point of view, on the other hand, it is applied to that same structure, that is, to the political organization, to the competition of the various powers and to the principles concerning the status of persons” (MAYNEZ, Eduardo Garcia. opus cit . p. 137).
Constitutional Law are the fundamental norms that organize the structure of the State, its government, the function of its organs and their relationship with the governed.
Comprised of fundamental norms, it is called a fundamental right in the sense that the validity of all other norms derives from it. It is the greater right that underlies the right that is in a lower hierarchical position. This idea of a fundamental norm ( Grundnorm) was developed by Kelsen, and for this reason we handed over to him the examination of its conformations. The professor from Vienna says that “the norm regulating production is the superior norm, the norm produced according to the determinations of that one is the inferior norm. The legal order is not a system of legal norms ordered on the same plane, located next to each other, but it is a staggered construction of different layers or levels of legal norms. Its unity is the product of the connection of dependency that results from the fact that the validity of a norm, which was produced in accordance with another norm, rests on this other norm whose production, in turn, is determined by another, and so on. onwards, until finally arriving at the fundamental norm – presupposed. The fundamental norm – hypothetical, in these terms – is, therefore,Pure theory of law. 4. Ed. Coimbra, Arménio Amado, 1976, p. 310).
Having established the meanings of constitution, the definition of constitutional law and what it represents in relation to other norms, it is now time to examine the relationship of this branch of normative science with criminal procedural law.
This relationship is not only formal, it is also political. Just turn your eyes to history with its incidents and we will see that the relevant changes in the constitution of the States bring changes in the form of criminal prosecution. The German jurist Eberhard Schmidt deals with this subject in depth and with exceptional lucidity. He teaches that the “ modifications of the social structure and, accordingly, of the constitutional state; exchanges of wool relations between public power and private individuals; transformations in people in terms of the meaning of rights and life; new orientations of political thought, all about the structure of the penal process, which is a clear signal that, in what it refers to itself, it is something of a preponderant political character”.And then warns:“Because of this very important influence from the political point of view, the objective of the criminal process is in constant danger of being separated from its purpose of truth and justice, and of being placed at the service of authoritarian political purposes. Political ideologies and witty words are nowhere as dangerous as in criminal procedure law. They only manage to overshadow the procedural psychological experiences made in the course of history; they serve as a mask for the holders of political power, for the erection of a simulated legal apparatus, behind which the most harmful abuses of power are hidden; they prevent any critical, substantial and scientific discussion of procedural problems, both de lege lata and de lege ferenda; mean not only the death of justice,SCHMIDT, Eberhard, The theoretical and constitutional foundations of criminal procedure law. Good).
The relationship between constitutional law and criminal procedure in the more strictly normative area is also no small matter. It is the Constitution that outlines the structural lines and the fundamental principles (which do not need to be expressly in it) by which the ordinary procedural legislator will have to guide himself. The unconstitutional ordinary law must have declared its ineffectiveness and inapplicability for the sub judice case. It is the criterion of the hierarchy.
It was with an intuition that is very particular to him that Tornaghi perceived the procedural law as an “extension and implementation of the constitutional chapter on individual rights and guarantees” (TORNAGHI, Hélio. Institutions of penal procedure, 2nd Ed. São Paulo , Saraiva, 1977. v. I, p. 75). Effectively, the most important institutes with criminal procedure regulation have the Constitution as their original source. The inviolability of the domicile, the legality of the arrest and its communication, the defense, the contradictory of the instruction, the Jury, the principle of isonomy, the right to judicial provision, legal assistance, habeas corpus, the writ of mandamus, the principle of the natural judge, the physical and moral integrity of the prisoner, competence, are categories established for the process whose first contours are imposed by the Constitution.
This intimate normative relationship produces effects on the interpretation and application of procedural law. It is certainly for this reason that proceduralist Frederico Marques (MARQUES, José Frederico. Manual de Direito Civil Procedural. 5. Ed. São Paulo, Saraiva. v. I, p. 4) was expressly referring to the discipline of Constitutional Procedural Law , whose object, according to the scholar, are the procedural norms contained in the Constitution.
Relations with other branches of law
Of the relationships that criminal procedure has with other branches of law, those maintained with administrative, criminal , and civil procedure stand out .
Administrative law is that set of norms that deal with public administration. Public administration, in Santi Romano’s definition, is the activity through which the State and its auxiliary subjects seek the satisfaction of collective interests ( Apud MAYNEZ, Eduardo Garcia. opus cit . p. 139).
Administrative activity, regulated by norms of this nature, takes place at the level of the police and criminal enforcement (BRUNO, Aníbal. Direito Penal. 3. Ed. Rio de Janeiro, Forense, 1978. Tomo I, p. 62). In the crime prevention activity and in the execution of the sentences applied in the sentences of the processes, executive bodies of the public administration intervene.
Criminal law , defined by the Spanish criminalist Cuello Calón as “the set of norms that determine crimes, the penalties that the State imposes on offenders and the security measures that it establishes for the prevention of crime” ( Apud MAYNEZ, Eduardo Garcia opus cit. P. 141). It keeps a close relationship with criminal procedural law, as it cannot be applied without it. Procedural law represents the instrument used by criminal law to act. This, in turn, criminally sanctions unwanted procedural conduct. One collaborates in the application of the other. The criminal protection of the process is based on Title XI of the special part of the Penal Code. It is Chapter III of the aforementioned Title that provides for Crimes against the Administration of Justice (art. 338 and 359). Among other crimes, false reporting of a crime, false self-accusation, false testimony, false expertise and procedural fraud are sanctioned there.
Criminal procedural law and civil procedural law are branches derived from the same trunk: procedural law. Some generic concepts and principles are common to both branches.
There is also a relationship between criminal procedural law and civil procedural law in the normative field.
Article 91 of the Penal Code stipulates that one of the effects of conviction is to make it a certain obligation to indemnify the damage resulting from the crime.
The Code of Criminal Procedure has its own title dealing with civil action. It stipulates that the final and unappealable decision of the criminal conviction enables civil enforcement to repair the damage. This judgment makes res judicata in the civil court insofar as it recognizes that the act was performed in a state of necessity, in self-defense, in strict compliance with legal duty or in the regular exercise of law (article 65). The following do not prevent the filing of a civil action: 1) the order to file the investigation or the pieces of information; 2) the decision that deems the punishment extinct; 3) the acquittal that does not categorically recognize the material non-existence of the fact; 4) the acquittal ruling that the imputed fact does not constitute a crime.
In another title, dealing with harmful issues, the Code of Criminal Procedure returns to dealing with civil action. There it is foreseen that, if the decision on the existence of the infraction depends on the solution of a serious controversy about the marital status of the people, the course of the criminal action is suspended until, in the civil court, the controversy is settled by a final judgment. If the process is suspended, and in the case of a public action crime, it is incumbent upon the Public Prosecutor’s Office to intervene immediately in the civil case, in order to promote its rapid progress.
CHAPTER 10 – AUXILIARY SCIENCES
need for knowledge
The so-called auxiliary sciences, rather than criminal law or criminal procedural law in particular, are auxiliary sciences of Criminal Justice.
They are called auxiliaries because they contribute to a better understanding, interpretation, application and even creation of substantive and instrumental criminal laws.
Law operators cannot restrict their knowledge to the exclusive study of the law. It is not in it that the understanding of the law ends, as it exists to act on the tumultuous lives of men. The right cannot be detached from the activity it regulates. If the jurist’s interest were restricted to the study of the legislation in force, it would be the isolation of Justice and the stagnation of the legal system. It is Pontes de Miranda’s lesson that those who only understand by law do not even understand by law . Not in too much of a hurry, so as not to become easy prey to inconsequential fads, but the evidence is that it is up to the law to transform itself to accompany the evolution of social relationships.
If a minimum of extra-legal knowledge is required from those who deal with the law in general, it is even more so from those who deal with criminal justice, because in this the man is judged with his peculiarities, accidents, feelings and illusions.
Certain sciences collaborate so that those who work with criminal justice can better understand the issues and problems involved. These sciences are Legal Medicine, Judicial Psychiatry, Criminology, Criminal Policy and Judicial Psychology.
Legal Medicine is a science composed of a set of medical-legal knowledge and aims to collaborate with Justice in the investigation of the truth.
It was the works De percussionibus and De cicatribus , by Bartolo (1314-1357), which gave rise to this science, and the first treatise on Legal Medicine was Methodus dandi relationes , by Ingrassia.
Forensic Medicine provides services to Justice by presenting the solution of technical problems. With it, the notions of insanity, death, injuries, drugs, abortion and others are clarified.
It serves both civil and criminal jurisdictions, but more often the latter.
Judicial Psychiatry, or Forensic Psychiatry, is part of Forensic Medicine and deals with personality deviations. It does not study normality, its object is abnormality, insanity. The concepts of psychosis, schizophrenia, oligophrenia, neurosis, paranoia, are determined by it. It is the opinions of psychiatrists that provide subsidies for the magistrate to judge on that important criminal issue regarding the imputability of the accused.
Criminology began in 1871 with the publication of the well-known work L’Uomo delinquente de Lombroso.
It is considered a propaedeutic science of criminal science, causal-explanatory, which studies the human (Criminal Psychology) and social (Criminal Sociology) factors that lead men to commit crimes. It does not address delinquency in the legal sense of the word. It understands by offense all deviant conduct, which does not always constitute a typical fact.
If there is a science in which there is no common agreement on any topic among scholars, this is Criminology. This is due, perhaps, to the influence of the ideological currents that predominate in it and that grant it an anguishing relativity of concepts and theoretical structuring. Henrique Forster de Freitas Lima noted that “the field of knowledge called criminology is a set of diverse and even contradictory theories” (LIMA, Henrique Forster de Freitas. For a new criminology. Porto Alegre, do autor, 1980. p . 9).
The Criminal Policy, based on data borrowed by Criminology, points out and suggests the necessary legislative reforms to promote crime control.
Justice is done for men by men. Criminal procedure is not just a legal relationship or a coordinated set of acts. It is also a social relationship. Judge and lawyer, judge and public prosecutor, lawyer and Justice assistants… all are related. There are cordialities, greetings, reasons for joy and sadness in procedural activity. Those who work know that the theoretical concepts of impartiality, independence, sobriety, common sense, prudence, in professional day-to-day, become more elastic, flexible and, sometimes, with unpredictable contours. Emotion is part of the process as his actions are part of it. Even more so in the criminal case, because there, where man and his destiny are judged, the effects generated by the criminal act are perceived around. The victim, in homicide, leaves his specter present. Entity that frightens the witness, looming their imagination, and which is capable of binding hearts more accustomed to the harmful effects of antisocial acts. Removing the memory of the victim is the fate, not only of the man being tried, but also of his family, who, in case of conviction, will also suffer the effects of punishment, and innocently so.
From this throbbing life that is the process, Judiciary Psychology turns. The study of the psychology of the judge, the accuser, the defender, the accused, the offended, the auxiliaries of Justice and, mainly, the witnesses, is his subject. What goes on inside the magistrate when he acquits? And when does he condemn? What is the credibility of the testimony of minors? From alcoholics? From offended? Of the accused? How and why do lies, conscious and unconscious, occur? The answer to these questions is studied by Judicial Psychology, whose objective is to help Justice in determining the truth, using for this purpose elements of psychological technique.
An excellent work on Judicial Psychology is the well-known work by the professor at the University of Naples, Enrico Altavilla, whose 4th Italian edition, published at the end of 1955, was translated into Portuguese. It consists of two volumes. The first deals with various themes, such as sex, emotions, passions, individual differences, disturbances of the psychic process, simulation of mental illnesses. The second volume deals with the psychology of those who participate in the criminal process: the accused, the offended, the accuser, the witness, the judge, the lawyer, the expert and the interpreter.
CHAPTER 11 – THE CRIMINAL PROCEDURAL STANDARD
The expression norm originates from the Latin gnorimos and in its legal sense means the rule of conduct imposed by the law to be observed.
It is not the location of the norm in the legal texts of the State that lends itself to identifying its nature. The norm is criminal procedure, not when it is contained in the Code of Criminal Procedure (there are rules in this Code that do not have a criminal procedural nature), but when its objective is to regulate the activity of the criminal procedure.
The criminal procedural norm, like other legal norms, is endowed with the characteristics of generality and bilaterality. It is general because it does not regulate a specific case in particular, but rather, it is intended to regulate several cases that may occur. Bilaterality is that it links the right of one person to the duty of another.
The rule of procedure is still written and governed by internal public law. It is written, as unwritten (customary) law has no normative force in procedural law. It is a matter of public law given the social interest that exists in the solution of the criminal dispute contained in the process. It is of internal law (they are national norms), since it regulates legal relations that are produced, modified and extinguished within the borders of the State.
The addressees of the procedural rules are all the people who participate in the process, having rights and duties (judge, accused, defender, representative of the Public Prosecutor’s Office, Justice assistants, witnesses, etc.).
Classification regarding applicability and mandatory conduct
Process standards can be classified, among other criteria, according to their applicability and mandatory nature.
By the first criterion, they are divided into exhaustive and supplementary. Most procedural norms are exhaustive, that is, they are norms whose performance is independent of the will of the subjects of the process. There is no way to prevent or remove them from the regulation of the concrete case. As Del Vecchio defines, the strict rules are those norms that order or prevail independently of the will of the parties, so that it is not lawful to derogate from them, either absolutely or relatively, in view of the determined end that the parties propose to achieve ( apud MAYNEZ, Garcia. opus cited. p. 94).
Supplementary norms are those whose non-application can be consented by the parties. There are few norms of this type in procedural law, especially in criminal procedure. In this branch of law, in which case the party can consent to the non-application of the rule is in the non-argument of nullity regarding the period conferred by the law. This is tacit consent, which guarantees the effectiveness of acts performed in disagreement with the provisions of the law. In civil law, more specifically in the contractual area, there is a great power of disposition on the applicability of legal norms. In the contractual area, the agreement between the parties is capable of ruling out the application of a reasonable normative fraction of the legal system.
As for the obligation of conduct, the criminal procedural rules are divided into mandatory and optional. Imperatives are those that impose and oblige a certain conduct. Referring to imperative norms, Bullow said that “the legal relations to which they extend are regulated in a determined way, in such an immediate and unique way that it is impossible to deviate from the legal regulation outlined”. And later he stated: “here objective law admits, for the state of things it regulates, a single rule, established by it with precision” ( apud CASTILLO y LEVENE HIJO. opus cit. v. I, p. 132).
Optional or dispositional are those that allow more than one conduct. They allow the act to be performed in this or that way, to be performed or not, or to be performed in any way. The origin of the procedural device power of the subjects of the process is in these norms.
Fractionation of the norm
Legal norms contain hypothesis and provision (MAYNEZ, Eduardo Garcia. opus cit. p. 170 et seq.). The hypothesis is the requirements (complex hypothesis) or the requirement (simple hypothesis) that the norm demands for the effects that it foresees to be produced. The provision is the legal effects (birth, modification or extinction of rights) that are produced when the hypothesis is realized. With technique, Maynez defines a hypothesis as “the set of conditions on whose realization the provision depends” and this, in turn, indicates “which normative consequences are determined by the realization of the hypothesis” (MAYNEZ, Eduardo Garcia. opus cit. p. 171).
Norm = hypothesis + provision
Hypothesis and provision do not necessarily coexist in the same provision of law or in the same law. The hypothesis may be in an article of the Code of Procedure and the provision in another article. The hypothesis may be in the Code and the provision in another law. An example of a hypothesis and provision contained in different articles of the procedural law is the case of a sentence, whose provision is the right to appeal.
Hypotheses can be complex. Complex hypothesis means that it is formed by a plurality of requirements. Crime is a complex hypothesis. It is not enough to “kill someone” (typicality is not enough) for it to be said that there is a crime of homicide. In order for there to be homicide, in addition to the requirement “to kill someone”, the combination of others is necessary: the act was not committed in self-defence, other conduct was not required…
The sanction is not a new element of the norm, distinct from the statements above. It is nothing more than a special category of disposition.
Before entering this topic, it is interesting that the floor is given to Garcia Maynes for a brief introduction: “The obligation whose non-compliance represents the legal hypothesis (Maynes refers to legal supuesto ) of the sanction, derives in turn from another hypothesis, which logically corresponds to the qualifier of primary. If the obligations that this conditions are met, the secondary is not carried out and, consequently, the sanction cannot be imposed. Just as there are primary and secondary hypotheses, there are also primary and secondary legal duties. The duty whose non-compliance determines the existence of an official obligation to sanction, naturally has a primary character. The sanction is, on the contrary, a secondary consequence.The norm that establishes sanction is called sanctioning. The latter is secondary in relation to the sanctioned. The relationship between the two is clearly summarized in the following formula: If “A” is, it must be “B”; if “B” is not, it must be “C”. The omission of the conduct ordered by the first precept constitutes the legal hypothesis of the second” (MAYNEZ, Eduardo Garcia. opus cit. p. 295).
In short, a sanction can be defined as the provision of a rule provided for in the event of non-compliance with the provision of another rule. The enforcement of the sanctioning norm is conditioned to the non-acting of the sanctioned norm.
Standard enacted (A): hypothesis A > provision A
Sanctioning norm (B): hypothesis B (provision A not carried out) > provision B (sanction)
In criminal law, sanctioned and sanctioning norms can also be viewed. The sanctioned one, taking for example the crime of homicide, is “if you are a person, you will not commit homicide” and the sanctioning one is “if you commit homicide, you will be punished”. Both contain hypothesis and provision, except that the provision of the second takes the qualification of sanction.
hypothesis (to be someone) > provision = required conduct (obligation not to commit homicide)
hypothesis (committing homicide) > disposition = sanction (punishment)
hypothesis (appropriation of someone else’s movable property) > disposal (return)
hypothesis (do not return someone else’s movable property) > disposition = sanction (punishment)
The norms that sanction procedural norms may or may not belong to procedural law.
Sanctions of procedural norms contained in norms of the same nature are the following: inadmissibility, decadence, peremption, nullity.
Sanctions of procedural norms contained in administrative norms are sanctions of suspension, loss of office, etc.
Sanctions of procedural norms contained in criminal norms are the punishments foreseen in the Chapter of the Penal Code that typify crimes against the administration of Justice.
CHAPTER 12 – CRIMINAL AND CRIMINAL PROCEDURAL RULES
Importance of differentiation
The importance of studying the criteria that differentiate criminal norms from criminal procedure lies mainly in the fact that these two branches of the legal system are regulated by different rules of intertemporal law.
Laws succeed one another in time. In this succession of laws, it is up to the interpreter and the applicator of the law to determine, based on the rules established by intertemporal law, which law is applicable to concrete cases, whether the new or the previous one.
In criminal law, the principle of non-retroactivity in pejus and retroactivity in melius prevails (exceptions to them are the immediate application of norms that deal with security measures and the ultra-activity of exceptional or temporary laws).
The principle of non-retroactivity in pejus means that the most severe criminal law does not produce effects for the past. If “A” commits an act that later an incriminating criminal law starts to describe as a crime, “A” will not suffer the effects of that rule.
If the subsequent norm establishes a more severe penalty for a given crime, the agent who committed this crime under the aegis of the previous norm is not subject to the new quantitative or qualitative punishment.
According to the principle of retroactivity in melius, the most beneficial penal norm retroacts to benefit the agent. Thus, for example, if a subsequent law no longer considers the fact for which someone is being prosecuted or punished to be a crime, the process or punishment ends.
The criminal procedure rule is governed by the principle of immediate application. Regardless of the date of the crime or the beginning of the procedural activity, the accused is subject to the procedural norms that are in force during the course of the process. Procedural acts performed under the previous law are not invalidated with the advent of the new criminal procedural law.
Another reason, no less relevant, for the importance of distinguishing criminal norms from criminal procedural norms concerns the question of the use of analogy.
Analogy is integration, it supposes lack of regulatory legal disposition of the concrete case. It is a legal principle by which the norm established for a given fact is applied to another given the similarity between both (TOURINHO FILHO, Fernando da Costa. Criminal proceedings. 5. Ed. Bauru, Jalovi, 1979. v. I, p. 163).
As a rule, analogy is prohibited in the application of criminal law. Nélson Hungary does not admit, even in view of the criterion of favorabilia amplanda , to apply it on the precepts referring to the exclusion of crime or culpability, exemption or mitigation of penalty and extinction of punishment. He says that against the admission of analogy in these cases “there is the objection that the precepts relating to these are of an exceptional character, and the exceptions to the rules of law are strictly limited to the cases to which they refer. Exceptiones sunt strictissimi juris. The precepts about discriminating, excluding or mitigating causes of guilt or penalty, or extinguishing punishment, constitute jus singularein relation to the incriminating or sanctioning precepts, and thus do not admit extension beyond the cases exhaustively enumerated” (HUNGRIA, Nélson. Comments on the Penal Code. 5. Ed. Rio de Janeiro, Forense, 1977. v. I. tomo I, p. 100).
Despite the authority of the eminent Brazilian jurist, the understanding prevails today among criminal lawyers that the use of analogy in criminal law is viable. Among these is Professor Heleno Fragoso, who maintains that the strict rules of a general nature are not exceptional and are susceptible to analogical expansion. Quoting Bettiol, Heleno Fragoso states that only when the norm represents a true and proper interruption in the logical projection of a penal norm should it be considered exceptional, and therefore limited to the cases specified therein (FRAGOSO, Heleno Cláudio, Comments on the Penal Code 5 ed. Rio de Janeiro, Forense, 1977. v. I, volume I, p. 230) .
While in part of criminal law the feasibility of analogy can be discussed (“in part” because incriminating criminal rules, it is common ground, do not admit analogy), in criminal procedural law the same does not occur. In this legal branch it is widely used to integrate the normative order.
As Eberhard Schmidt observes, procedural law and substantive law refer to different fields of social reality. “Procedural law regulates the progress of a procedure that tends to obtain a judicial decision and determines which acts of the parties, such as actions in accordance with the order of procedure, within the sector of procedural reality, must be admitted to achieve this objective. . Substantive law, on the contrary, does not refer with its valuations to the interior of this procedural sector, but expresses what must be proven outside it, in the sector of the reality of social life, that is, of the interests of social life” ( SCHMIDT, Eberhard. opus cit. p. 27).
Effectively, procedural and substantive norms are intended to govern two distinct worlds. On the world of procedural activity, in which the subjects of procedural legal relations participate, the rule of procedure applies. Criminal law is interested in the activity carried out by members of the community in social life.
It is not the position of the norm in the legal texts that indicates its nature. Ideally, the rules of procedure were exclusively in the Code of Procedure and those of criminal law kept a reserved position in the Penal Code. However, this does not happen. There are procedural norms in the Substantive Code, and the reverse, substantive norms in the Procedural Code.
Procedural norms are those that establish competence, that regulate the acts of the parties, of the judge, of the auxiliaries of Justice, that foresee nullities, that indicate the resources, in short, procedural norms are those responsible for the form, beginning, progress and end of the procedural activity.
Criminal law norms are those that describe the typical facts and impose penalties, that regulate the causes that exclude guilt and unlawfulness, that provide for security measures and describe the excluding causes of punishment, that is, they are norms that regulate the law subjective right of punishing of the State and, consequently, the subjective criminal right of freedom of the citizen.
Misapplication of procedural norms gives rise to error in proceeding (procedural error – the process conducted by an impeded judge) and poor application of substantive norms originates error in iudicando (error of judgment – the conviction of those who did not commit a typical act or who acted in self-defence).
CHAPTER 13 – SOURCES
When talking about sources of law, the allusion can be made to sources of production or to those others, called sources of knowledge.
The sources of production are divided into mediate and immediate. Mediate sources of production are the values, ideals and interests of society. It is the phenomenal-social reality constituted by economic, religious, political, moral, historical factors, etc. Immediate sources of production are the legislative bodies in charge of making the law and the judiciary body that enforces it.
Sources of knowledge are those that manifest, express and externalize the law. They are of two types: binding and subsidiary.
Binding source of law is the one that obliges the judge. It is the one to which the judge has the legal obligation to resort to resolve concrete cases. The binding source par excellence is the law. But not just her. If the law expressly requires custom, doctrine or jurisprudence to apply, they will also be binding sources of law. In this case, the law grants legal and normative force to these elements. As Kelsen notes, moral and political principles, legal theories, expert opinions will only be legally binding when a positive legal norm delegates this quality to them (KELSEN, Hans. opus cit. p. 323 ) .
Subsidiary sources are those that help the judge in the task of interpreting and applying the law. They are not binding, they are not mandatory.
Source of binding knowledge of criminal procedural law
Source of binding knowledge of criminal procedural law is the criminal procedural law. It is not the criminal procedure norm. The criminal procedural norm, or better, the set of criminal procedure norms are the criminal procedural law. Norm and law are not to be confused. Law is not norm nor norm is law. The law is the sign used to express the norm. The law contains and the norm is contained. The source is a means to express the norm. The subject is dealt with by Carnelutti, who clarifies: “if by derecho (objective) we understand a system of mandates, abstract or concrete, the source of the Derecho cannot logically be the one from which the mandate derives”. And just ahead he writes that the law“It is a word whose meaning should be specified. In ordinary language, law means rule or norm; but in legal language, we use it to indicate a source of the mandate” (CARNELUTTI, Francisco. Civil procedural law system. Buenos Aires, Uteha, 1944. v. I, p. 77).
Law can be defined as a written sign that contains order (norm) of the State, whose obedience is ensured by it.
The law as a source of binding knowledge encompasses the Constitutions (Federal and State), international treaties and conventions, supplementary, ordinary and delegated laws, decree-laws, decrees and internal regulations of the courts.
Subsidiary sources of knowledge of criminal procedural law
Subsidiary sources of knowledge of criminal procedural law are those that, without having mandatory force, help in the interpretation, application, elaboration and reform of the law. They are custom, jurisprudence, doctrine and principles of law.
Before writing, the binding source of law was custom . Afterwards, the custom was replaced by the law, capable of offering greater security, necessary for the law.
In Orlando Gomes’ definition, custom is constant and notorious general use, observed in the conviction that it corresponds to a legal need (GOMES, Orlando. opus cit. p. 58).
According to ancient doctrine, there are two elements of custom: the objective and the subjective. The objective element is the use for a long time, and the subjective is the conviction of its legal necessity.
Bobbio lists the elements of the custom as five: 1st) generality (must be observed by a group of people); 2nd) uniformity (repetition in a similar way); 3rd) continuity (there can be no interruptions); 4th) durability; 5th) publicity (it cannot be secret) ( apud GUSMÃO, Paulo Dourado de. opus cit. p. 148).
Customs are usually divided into three types: secundum legem, praeter legem , and contra legem.
Orlando Gomes writes that custom secundum legem is what is expressly referred to in the law. Custom praeter legem is what serves as a complement to the law, filling in its gaps. Custom contra legem is what is formed in opposition to a legal provision (GOMES, Orlando. opus cit. p. 60).
Customs have a great influence on social conduct. This force of custom was ironically described by Montaigne when he wrote: “It seems to me that the force of custom understood very well who first invented this story of a woman who, having become accustomed to caressing and carrying a calf in her arms, from birth , and doing it daily, he arrived by force of habit to carry it even when it had already become an ox. For custom is indeed a perfidious and tyrannical teacher. Little by little, in secret, it gains authority over us, at first tender and humble, implants itself in the course of time, and asserts itself, suddenly showing us an imperative expression to which we dare not even raise our eyes. Montaigne then recounts: “a certain French gentleman, famous for his wit, blew his nose with his fingers, thing contrary to our usages. Defending her way of behaving, she asked me why such dirty excrement deserved to be taken from a delicate handkerchief to receive it. And what’s worse, to wrap it up and keep it precious. This habit was certainly more repugnant than getting rid of it in any way we proceed with other dirtiness” (MONTAIGNE, Michel de.opus cit. P. 61 et seq).
Custom, in the process, is represented by those uses that we call forensic practice. It is a source of procedural law, as long as it is not contrary to the law. The forensic practice that is carried out in accordance with the procedural law is a source of law, as it assists the interpreter and the applicator and provides subsidies to the legislator in the elaboration of laws. It should be noted that for the custom to be in conformity with the law, it is not necessary for the latter to make express reference to the customary conduct, it is enough that the custom does not violate, is not contrary to procedural norms. Now the custom against the law is not a source of law, but of will and illegality.
Jurisprudence has already been an expression used to mean the Science of Law.
Today, the term is used in two senses. One of them means jurisprudence the set of judicial decisions, and the other, which seems more scientific, means the set of principles, theories and doctrines established by judicial decisions.
In the Brazilian system, the jurisprudence does not bind, except in exceptional legal hypotheses, the decisions of the judges with obligation (in the direct action of unconstitutionality, in the declaratory action of constitutionality, in the argument of fundamental precept, the binding precedent and the incident of resolution of demands repetitive). The fact that a given case is given, repeatedly, the same solution by the courts, does not oblige the judge to decide in accordance with that solution. The magistrate, interpreting the law, may arrive at a decision different from that which is normally accepted in peaceful or dominant jurisprudence, without it being possible to say that his decision is unjust or contrary to the law.
Jurisprudence is, therefore, a subsidiary source of law. The previous decisions help in the task of interpreting the law. They collaborate in the integration and application of the law and contribute to the elaboration and reform of laws. This contribution that jurisprudence makes to the elaboration of the law can even be seen from the historical point of view, since, as Giuseppe Chiovenda writes, “the judge appears, in principle, free in his judgment, although guided by legal common sense or by the custom: it is thanks to the work of judges that legislation is slowly formed”.
As has been said, jurisprudence grants subsidies for the interpretation and application of the law. But only this. When the judge finds interpretive reasons to give another meaning to the law, different from that found by previous decisions, he must make it prevail. About the magistrates who are attached to jurisprudence as if it were a binding source of law, the words of Nélson Hungary: “From the same tribe as the technical-aprioristic judge is the fetishist judge of jurisprudence. This is the bureaucratic judge, the judge with files and catalogues, the judge who genuflects before jurisprudential repertoires as if they were the sacred books of some Kabbalistic religion. For him, jurisprudence is immutable and eternal law: he segregates himself within it like an anchorite in his cave, indifferent to the adventures of the world. It will be useless to try to move him from his usual angles.error communis facit jus. By dint of impregnating himself with doctrine and jurisprudence, the judge becomes depersonalized. It reduces its function to the humble role of a sponge, which only returns the water it absorbs. He builds in his spirit a wall of apriorisms and legal prejudices, which cover his windows to life. His decisions resemble, due to the absence of spontaneity, the declarations of love memorized in Conselheiro dos Namorados.Framed his thought in the closed schemes of scientific theorism or curial casuistry, his soul withers and dries up, impassive to the dramas that come to be epilogized in the courtrooms. He does not feel the right, which he only knows and declares within rigid and invariable formulas. He performs his function as coldly and impersonally as the customs officer when classifying goods under the headings of the tariff table” (HUNGRIA, Nélson. opus cit. v. I , tome I, p. 77 et seq.).
Doctrine is the research, monographs and treatises of legal scholars. They are the opinions of jurists on how legal solutions should be given, how norms and the systems and notions they elaborate should be interpreted.
The doctrine, as a subsidiary source, assists in the interpretation, application and elaboration of laws. Its importance lies in methodically systematizing legal matters, establishing basic notions and principles, thus facilitating the study of law.
The doctrine is a subsidiary source, it does not bind. However, it wasn’t always like this. In Roman royalty, writes Cretella Júnior, the sources of law boiled down to law and custom. In the Roman republic, in addition to these two sources, the plebiscite and the edicts of the magistrates, the interpretation of the prudent appears. The interpretation of the prudent, which was called jurisprudence by the Romans, is equivalent today to what we call doctrine: the comments that scholars make to the law. But at this time the interpretatio prudentium had not yet acquired binding force. The strength of opinions is born with the jus publice respondenti (the right to officially respond to queries) of the prudent made official by Augustus. Before Augustus, the responsawere given without State authorization. It is he who determines that consultations be given in writing and signed (CRETELLA JÚNIOR, J. opus cit. v. I, tome I, p. 77 et seq.).
The principles of law as a source of law are those elementary norms or guidelines that, because they have conducted the task of legislating, are part of the legal system, forming its foundation.
In the search for a legal solution to legal issues, Giovanni Leone suggests resorting to the general principles of the criminal procedural legal system (wide defense, officiality, in dubio pro reo, etc.). If the solution is not found in them, the principles of procedural order in general are resorted to; then to the principles of public law and, finally, to the principles of the legal system as a whole (LEONE, Giovanni. opus cit. v. I, p. 64).
CHAPTER 14 – PROCESS CONCEPT
The term “process”
The term process has medieval Italian ancestry ( processus iudicii ). Before, the original expression of Roman law was used “iudicium” which derives from “iudicare” (to declare the right). The inconvenience of the term judgment , whose origin is “iudicium” , results from two reasons. The first is that he lacks the strength to understand the instructive and enforceable phases of the criminal process (TORNAGHI, Hélio. opus cit. v. I, p. 308). The second reason for the inconvenience is that the expression seems to limit the authorship of procedural acts to the judge when, it is known, other subjects participate in the process.
But the superiority of the term process over judgment is not only in the shortcomings of the latter. It is also in that the word process , even in its origins, reflects, as noted by Wach ( apud CATILLO, Niceto Alcala-Zamora, LEVENE HIJO, Ricardo. opus cit. v. I, p. 16) the idea of march, or movement , directed toward a goal or purpose.
This is what criminal procedure represents: a movement aimed at applying criminal law.
External and internal view
Visualizing the external aspect of the process we will be facing its procedure.
Procedure is the way to act. There are procedures for enrolling in the entrance exam, for taking off an aircraft, for driving a car, and also for eating at the table.
The procedure of the process is that set of acts that follow one another in a coordinated sequence. It is also the form of each of these acts.
But the process is not only its rituality and conformations. There is an inward aspect to it. In this are the rights, obligations, relationships and legal situations. The rights and obligations of procedural subjects make up legal relationships. The bundles or sets of legal relationships that follow one another as the process unfolds form legal situations.
Process and procedure
Praxists did not distinguish process from procedure. This is due to the fact that, at that time, the nature of the process had not yet been scientifically studied to reveal what constitutes its interior.
Currently, process and procedure are not confused. The process is more than procedure. The procedure is just one element of the process. There can be procedure without process, however, there is no process without procedure. The process, in addition to procedure, involves a set of legal relationships.
We will begin by describing and commenting on the elements that make up the concept of criminal procedure, and then enunciate it.
Criminal proceedings cannot be carried out outside the doors of the Judiciary. The interference of bodies of criminal jurisdiction cannot be replaced by arbitrators. Even if the parties so wish. It is the principle according to which there is no penalty without being applied by the judge. In order for the criminal law to be applied to the process, it is essential to have a judicial decision. But, it should be noted, it is not only the jurisdictional bodies that act in it. Many acts are performed with the collaboration of the parties. Public Prosecutor’s Office and Defense provide assistance to the procedural activity so that the real truth on which the criminal law will focus is clarified. Here, the first element of the concept of criminal procedure: activity in which jurisdictional bodies and parties act.
This activity is not carried out for the pleasure of anyone. The form, time and place of acts are regulated by law. More specifically by criminal procedural law.
The process consists of a set of acts with succession and pre-established forms. It is the outer aspect (the procedure) of the process that cannot be set aside in the conceptualization.
Also constituted by a set of relationships and legal situations . The legal relationships in the process are born, modified and extinguished as the legal facts occur. Bundles of legal relationships form legal situations.
The purpose of this activity and this set of procedural legal relationships is not just to arrive at the final sentence. Criminal proceedings do not end with the final judgment. Res judicata is only half the battle. There is also execution, a phase of the procedure that does not escape the limits of the process.
The process aims to apply criminal law to concrete cases. Applying the criminal law is to determine , through the sentence, what is the substantial criminal legal relationship that binds the State to the accused and to execute it.
Applying criminal law to concrete cases , as the process does not have theoretical, academic purposes. Its purposes are practical.
Given these considerations, we conceptualize the criminal procedure as an activity, regulated by law, which aims to apply the criminal law to concrete cases, through the action of jurisdictional bodies and parties, consisting of a set of acts with succession and pre-established forms and by relationships and legal situations.
CHAPTER 15 – CRIMINAL PROCEDURE AND CIVIL PROCEDURE
Criminal procedure and civil procedure have similarities and differences. These and those will be addressed in this chapter so that, in the end, it can be verified what the consequences that result from them for the study of procedural law.
Criminal procedure and civil procedure, in essence, are identical institutions. They are regulated, says Carnelutti, by branches of law (criminal procedure and civil procedure) that are linked to the same trunk: procedural law ( apud CINTRA, Antonio Carlos de Araujo, GRINOVER, Ada Pellegrini and DINAMARCO, Candido. opus cit. p . 21). Both are successions of coordinated acts, regulated by law. Both have legal action. Both are formed by relationships and legal situations, that is to say, they have the same nature. Both have the same purpose, which is to apply substantive law. Both are regulated by public law, have an instrumental character and are conditioned to the exercise of the action.
In favor of the essential identity of the two processes, the historical element must be added. If, in primitive times, observes Florian (FLORIAN, Eugenio. opus cit. p. 22), the process was unique, it was gradually and with increasing intensity accusing differences, until it adopted the double form, civil and penal.
If the essential identity of the criminal procedure and the civil procedure is undeniable, it is also undeniable that circumstantially they present differences.
Criminal proceedings always contain a substantial legal relationship regulated by criminal law that binds the State and the accused. With the jurisdictional decision, the aim is to determine the active subject of this criminal law relationship. The public interest that exists in the correct application of the criminal law makes it possible to investigate, in the criminal jurisdiction, the truth of the facts. The criminal procedure, in order to achieve its purpose of applying the fundamental law, seeks the material truth. The civil procedure is usually satisfied with the formal truth, the one that is taken to the judge by the parties.
While the criminal procedure is absolutely necessary for the operation of the substantive law, the civil one is not, in it the substantive obligation can be carried out without process. By default, that means little; in this, lack of contestation implies confession. In that case, the action, normally carried out by a public body, is mandatory and, in the civil procedure, the action, generally legitimated by individuals, is optional. In criminal proceedings, there can be no waiver, transaction, conciliation (except in the case of plea bargaining and in the composition methods of the special court); in civil procedure these institutes are authorized.
Consequences of circumstantial differences
As for the consequence of differences in procedures, Leone is convincing when he argues that these “must be considered in order to confirm the diversity of procedural regulations, which do not lend themselves to easy approximations” (LEONE, Giovanni. opus cit. v. I , p. 15).
The single regulation of the process belongs to the past. Today, criminal procedural science is autonomous in relation to civil procedural science. The principles of procedural law, in both areas, acquired their own structure and intensity. A single code would confuse the interpreter, as it would overflow with exceptions to rules and exceptions to exceptions. There would be damage to the security required of law. These are the reasons why we have our own regulations for civil proceedings and another for criminal proceedings.
CHAPTER 16 – PHASES
The process, points out Calamandrei, presents a series of phases, each one of which constitutes a stage of the process in its entirety ( apud LEONE, Giovanni. opus cit. v. I, p. 14).
Giovanni Leone considers that the phases into which the process is divided have a function and, therefore, also a structure, in which notable differences are observed. The phases of the process – he continues – all have the same purpose; but each one has a certain particular configuration, which reflects its own purpose and which is not only dissociated from the purpose of the process as a whole, but is in connection with it (LEONE, Giovanni. opus cit. v. I , p. 14).
The criminal procedure can be divided into six phases, which are the postulatory, the probative , the reasons , the decision , the appeal and the enforceable . The first five gathered constitute the so-called declaratory phase, in which the legal relationship of criminal law is sought to be individuated.
Postulatory is the initial phase of the process. It is there that the prosecution, with the complaint or complaint, asks the judge to apply the criminal law to a concrete case.
The purpose of the evidentiary or instructive phase is to collect material to determine, at least approximately, whether the criminal act was committed, who is its author and what is its guilt (FLORIAN, Eugenio. opus cit. p. 138).
In the reasons phase , also called the allegations or debates phase, the parties, each in their own way and according to the interest they represent, provide the judge with the interpretation that they consider should be given to the evidence.
It is in the decision-making phase that the judge decides whether or not the author’s request is valid, condemning or acquitting the accused. Reasons phase and decision phase together form a larger phase called judgment .
In the appeal phase , the dissatisfied party asks the higher court to change the decision.
In the last, enforceable phase , the State enforces the substantial legal relationship declared in the sentence. There are those who think that this phase is not part of the process. This understanding may be correct for the civil procedure because, as Couture says, “civil enforcement is not mandatory, since many are the processes that do not generate, nor require coercive enforcement” (COUTURE, Eduardo. Introduction to the study of civil procedure .Rio de Janeiro, José Konfino, 1951. p. 59). For criminal proceedings, understanding is not valid. In this area, execution is not a new process, but its continuation. The purpose of the process is the application of criminal law. The declarative phase ends with the application in theory of the law and the executive phase fulfills the practical, real application of the law. It is not possible to maintain that the criminal procedure ends with the final judgment of the sentence, as this would imply the idea of a process that does not fulfill its entire purpose. It would be a process that would declare the penal law but not execute it. If it is true that the purpose of the process is to apply the criminal law, it is necessary that the execution integrates it. One cannot speak of application without execution.
In the procedural phase of execution, the jurisdiction assisted by the administration operates. At this stage there will be requests and judicial decisions dealing with the conditional suspension of the sentence, conditional release, pardon, prison regime, etc.
It should also be noted, as Zamora did (CASTILLO, Niceto Alcala-Zamora; LEVENE HIJO, Ricardo – opus cit. v. I, p. 29), that execution is not just a matter of conviction. There is also execution of an acquittal sentence. This is the case of freedom for the preventive prisoner.
These phases that make up the process do not have strict limits. Acts proper to one phase are performed in others. In the appeal phase, there is always a postulation and, sometimes, instruction. There are resources in the instructional phase. The reasons or allegations are a constant in all procedural activity. Decisions in the instructional phase are frequent. And execution in the statement? Does not exist. There is only the appearance of execution in the instruction in the case of pre-trial detention.
Location of the police investigation
The police inquiry has no place within any of these stages of the process. It is outside the process. The inquiry is only admitted as part of the process if we use the word process in consideration of its external appearance, as a set of acts (as a procedure). Tornaghi ponders that “there is no mistake, as is sometimes said, in calling the inquiry a process. It should be understood that the word is not being used to mean a procedural relationship that, as a rule, begins with the accusation” (TORNAGHI, Hélio. opus cit. v. I, p. 308). Understood the process as a set of legal relations regulated by procedural law, inquiry is not a process. And the reason for this is that the norms that deal with the police investigation, contained in the text of the Code of Procedure, notwithstanding its location and eventual implication with the process, are norms of administrative law since they discipline the police activity, which is an organ of the public administration.
CHAPTER 17 – OBJECTIVES OF THE PROCESS
The direct purpose of criminal procedural law is the regulation of criminal procedure and, indirectly, the application of criminal law.
Well then, the direct purpose of the criminal procedure coincides with the indirect purpose of the law that regulates it: the application of criminal law .
The application of criminal law in the process takes place both in the declarative and in the executive moments and is an expression that can be interpreted in four senses, two of them derived from the first moment and the other two from the second.
Applying criminal law, therefore, as the immediate purpose of the process, can mean:
1) the acquittal of the accused who did not commit an act foreseen as a crime or who did not have his guilt sufficiently proved;
2) the conviction, by sentence, of the accused violator of the criminal law and the determination of the applicable consequences (penalty, etc.);
3) the execution of the acquittal sentence. The State must ensure the absolved person’s freedom to come and go;
4) the execution of the condemnatory sentence. Criminal procedure, applying criminal law , also carries out the sentence of conviction. Hence the inclusion we made of the criminal enforcement phase in the process.
Since the direct purpose of the criminal procedure is to apply criminal law, the indirect purpose cannot be other than the same as that of criminal law. As Florian writes, the indirect purpose of the criminal procedure “is identified with that of criminal law in so far as it is directed towards carrying it out” ( FLORIAN, Eugenio. opus cit. p. 58 ) .
The indirect or remote purpose of the criminal procedure is therefore the social defense against crime ( id.ibid.inf.) , safeguarding the legal order and social peace ( THEODORO JÚNIOR. opus cit. v. I, p. 9) , the defense of society ( BRUNO, Aníbal. Direito Penal. opus cit. v. I, tome I, p. 2) , protect the legal and social order ( MARICONDE, Alfredo Velez. opus cit. v. II, p. 45) , restore the disturbed legal order ( CASTILLO, Niceto Alcala-Zamora; LEVENE HIJO, Ricardo. opus cit. v. I, p. 29).
It is interesting to point out that the process does not reach its objective only in the declarative and enforceable stages. Judicial activity itself contributes to this end insofar as, as Schmidt notes, the implementation of criminal law with the process demonstrates the seriousness of criminal sanctions and contributes to the reinforcement of their preventive effects (SCHMIDT, Eberhard. opus cit. p . 23).
Another purpose of the criminal procedure can also be added, which was born out of a historical necessity. It is to prevent or replace private revenge. The state persecutory activity that develops with the criminal process produces in the offended by the crime (or in their family members) the psychological effect of curbing their impulse and their sense of revenge.
CHAPTER 18 – OBJECT
the classic position
In the classic doctrinal position, the object of the process was seen as the legal relationship of criminal law (the substantive or material legal relationship) which, born of the practice of a fact foreseen as a crime, bound the State, to the accused, the one with the right to punish and the latter with the obligation to submit to the penalty.
This understanding came under severe criticism. The most important of them was carried out with the following argument: the object of the process is not the substantive legal relationship, because when it happens that the imputed fact does not constitute a crime or the accused is not its author, the absurdity of a objectless process.
The formulated criticism seemed insurmountable to the doctrine and, as a result, a search was made for a new object for the process to take the place of the material legal relationship.
The Italian jurist Giovanni Leone sees within the criminal procedural activity an opposition between the subjective right to punish and the individual’s right to freedom. From there, he concludes: “the generic object of the criminal procedure is the conflict between the subjective right of the State to punish and the citizen’s right to freedom; specific object is the conflict between these same rights in relation to a specific imputation” (LEONE, Giovanni. opus cit: v. I, p. 246).
Other scholars maintain that the object of the process is the request for judicial protection. Among these is José Frederico Marques, who considers: “since the legal-material relationship in which the right claimed by the author is embodied may not exist, it would be wrong to point to it as the content or material object of the process, as it would have one would admit that, in some hypotheses, the process would be without object” (MARQUES, José Frederico. Manual of Civil Procedural Law . 5th Ed. São Paulo: Saraiva, 1977, v. I, p. 116).
For Alfredo Mariconde, the process object ” is the conceptual representation of a concrete matter of life around which the process revolves: that is, the hypothesis of a historical event, of a certain fact that is presumed committed and considered from the point of view of criminal law: a hypothetical matter or something thought to be contrary to a criminal norm from which a repressive claim arises . And, to continue, he tries to demonstrate avantagem his object identification: “so that if the judge manages to verify, after establishing the relationship, that this event did not exist, that is, that the imputed act was not committed, he will not It can be said, certainly, that it lacked an object before that verification” ( MARICONDE, Alfredo Velez.opus cit: v. II, p. 62).
Neither the generic nor the specific object suggested by Giovanni Leone are convincing. The generic is not convincing because in the legal system (in objective law), there are no conflicts between rights. To pretend that two rights conflict in the abstract is to want to transform the order into legal “disorder”. The rights to the inviolability of the home and the right to enter the home without the owner’s permission coexist in perfect harmony in the normative sphere. One is subject to certain conditions that are in fact pre-established and the other to conditions of the same nature (in fact and pre-established), but different.
If the right to punish does not clash with that of freedom at the abstract level, the same happens at the level of concrete relationships. There is no conflict between the right to freedom and the right to punish in the face of a specific charge. Faced with concrete factual conditions, the bailiff cannot have the right to enter the home concurrently with the resident’s right not to have invaded his/her home (either there is or there is no order from the competent authority). “A” cannot have the right to demand a certain conduct from “B” at the same time that “B” has the right not to carry out this conduct. Either one or the other! Not even the rights of action and exception are in line with each other in the process, as they are not directed from one holder to the other, but to a different person who is the judge.
What happens in criminal proceedings is that there is either one right or the other. Either it contains the right to freedom or the right to punish, as there was or was not a crime, and the accused is or is not its author. The concomitant existence of both is an idea devoid of logic.
Nor is the request for judicial protection the object of the process. It is true that both at the beginning and in the continuation of the activity developed in the process, plaintiff and defendant claim jurisdiction. However, the legal relationships that make up the process do not always have as their object the provision of jurisdiction, such as the one that links the judge to the witness, the first with the right and the latter with the duty to appear.
Object of the process is not the jurisdiction or the request for jurisdiction. Jurisdiction may indeed be the object of the action. Process is action. Process is the exception. Process is jurisdiction. One of the elements that compose it (jurisdiction) cannot be considered the object of the process. In addition, the object of the process must be “the matter or topic discussed in the process itself and decided by the judge (FLORIAN, Eugenio – opus cit. p. 49 ) and the jurisdictional provision is not the subject of debate , it is owed.
The process is action, jurisdiction and the (legal) relationship between action and jurisdiction. These are the three elements of the process. The action, isolated, is distinct from the process. Jurisdiction too. But related (legally) action and jurisdiction is the process. The process is a legal relationship that binds the parties to the judge, that is, the action (and exception is action) to the jurisdiction).
Jurisdiction is the power to say the law. It is commonly understood as the power to say the substantial right. Hence it is stated that the process is an instrument of jurisdiction. However, the concept of jurisdiction is not exhausted in the power to say the substantial right. Jurisdiction is also the right to say and impose the adjective right. It is in this sense that the jurisdiction is presented as one of the elements of the process – the action is the other. When it is stated that the concept of process is completely different from the concepts of action and jurisdiction, it is because the expression jurisdiction reserves the meaning of power to say the substantive right. The process, while jurisdiction is defined as the power to say the adjective right -the magistrate conducting the process and deciding questions of a formal nature – is jurisdiction (related to the action through the procedural law).
Alfredo Mariconde proposes as the object of the process the factual hypothesis contained in the accusation, on which the process deals. This position is correct. In the process, what is discussed, basically, is whether or not the accused committed the act described in the complaint. With the process, an attempt is made to find out if the fact described in the complaint is not true, because that is impossible, since the truth escapes human knowledge. What is sought to establish, pursuing (pursuing seeking to approach) the truth through the accusatory/contradictory procedural (and before that with the predominantly inquisitive police procedure), is whether there is proof that the fact described in the complaint occurred. Note: existing proof is different from establishing whether it is true. proof isthe evidence or set of evidence capable of authorizing the conviction that a fact exists, existed or will exist. See the heading Evidence, Conviction and Proof , in our commentary on Article 155.
Complementing the new doctrinal position by updating the classical position
Object of the process is the delinquent hypothesis contained in the initial accusatory piece. This idea deserves complementation.
The immediate object of the process is the criminal hypothesis. Mediate is a substantive legal relationship.
The substantive legal relationship is regulated by criminal law. Objective criminal law does not contain only the subjective right to punish. In those gaps located between the types located between the incriminating norms, the subjective right of freedom sprouts. There is one aspect of the process that is absolutely certain: either the accused is innocent or he is guilty. There is no room for an alternative. Either he committed or he did not commit a crime, that is to say, either there is a subjective right to punish or there is a subjective right not to be punished. In conclusion, there is, in the process:
a) o or a legal position of criminal law in which the State occupies the position of active subject and the subjective right is to punish with the obligation of the accused to submit to the penalty;
b) or a legal relationship of criminal law in which the accused occupies the position of active subject and the subjective right is that of freedom with the obligation of the State to respect and guarantee it.
Thus, we conclude:
Immediate object of criminal proceedings criminal hypothesis contained in the accusatory complaint.
Mediate object is the individualization of the substantial legal relationship, which may contain either the State’s right to punish or the accused’s right to freedom.
Seen from another angle, the object of the process, the identification of the material legal relationship, is externalized in the criminal hypothesis contained in the initial accusation, in the determination of whether or not it is true. The former is the object of the process from the internal point of view, the latter from the external point of view.
CHAPTER 19 – THE LITIGATION
Is there a conflict of interest in criminal proceedings?
Carnelutti defines litigation as a conflict of interests qualified by the claim of one of the interested parties and the resistance of the other ( CARNELUTTI, Francisco. opus cit. v. I, p. 44). He maintains that the concept of litigation is applicable to both criminal and civil proceedings.
In our view, there is criminal litigation but there is no conflict of interest in criminal proceedings and, therefore, we define litigation in a different way.
The social interest is justice. This greater interest is combined with two: the interest that the guilty be punished and the interest that the innocent be acquitted.
Society is interested in punishing the culprits, as it is assumed that if crimes do not go unpunished there will be a reduction in criminality given the repressive/preventive effects of the penalty.
The social body has an interest in the acquittal of the innocent, because only then will the honest citizen have the necessary tranquility and security to live socially with the certainty that he will never suffer an unjust condemnation.
In criminal proceedings, it is incumbent upon the prosecution to ensure the social interest in punishing the culprits. To the defense, the task of protecting the social interest of acquitting the innocent. As these two interests are not opposed, on the contrary, they complement each other, there can be no conflict of interests.
There is no place in criminal procedure for conflict of interest. However, the same cannot be said for the unsatisfied claim. The statement that follows is uncontroversial: either the accused is guilty or innocent. If guilty, there is in the process the State’s right to punish and the accused’s substantial obligation to submit to the penalty, that is to say, there is in the process the state punitive claim that is unsatisfied because the accused, due to the process, opposes it . If the accused is innocent, he has the substantial right to freedom and the State has the obligation to guarantee it to its fullest extent. The claim of the innocent accused is unsatisfied because, even responding freely to the process, his right to come and go is, more or less, restricted. The substantial freedom to which he is entitled is not being granted in all due fullness.
Litigation for Carnelutti is essential to the process. The well-known jurist says that litigation is present in the process like an illness in the cure. But the two are not confused – he continues – litigation is not a process, but is in the process. The process lends itself to solving it. Between process and litigation mediates the same relationship as between continent and content ( CARNELUTTI, Franciso. opus cit. v. II, p. 3).
What is Litigation? Calamandrei noted that among scholars the meaning of this word is imprecise and multiple ( apud CARNELUTTI, Franciso. Estudios de derecho procesual. Buenos Aires, Jurídica Europa-America, 1952. v. I, p. 44).
The unsatisfied claim contained in the process, whether its holder is the State or the citizen, gives rise to the procedural debate. To use broader terms, it gives rise to procedural discussion or controversy . Prosecution and defense, each in their own way, interpret the evidence and suggest to the judge the norms to be applied. Criminal litigation is, therefore, the procedural controversy established as a result of the dissatisfaction of the substantive criminal claim. Unsatisfied claim that it is either the accused or the State.
Legally irrelevant interests
However, it should be noted when we argue that there are no conflicts of interest in criminal proceedings, and not “subjective” ones. The subjective interests in the process are circumstantial, variable. The interest of the accused, even guilty, naturally and almost always, is freedom. The defender, even if he does not believe in innocence, may subjectively have an interest in the accused being acquitted. It may also happen that the representative of the Public Prosecutor’s Office, on a certain occasion, corresponding to the deficiency of the human condition, even though he is aware of innocence, wishes to condemn. Society itself can be subject to “subjective” interests. A community traumatized by criminality cannot have any other interest than the one aimed at convicting any suspects and defendants without any proven guilt.
These subjective conflicts of interest are occasional and may or may not be present in the process. It is because they are human, occasional, variable, that they have no legal relevance.
Their relevance does not cross the limits of Judicial Psychology. Therefore, in strictly legal and technical terms, there can be no conflict of interest.
CHAPTER 20 – TYPES
Historical development has known three types, systems or forms of criminal procedure: the accusatory, the inquisitorial and the mixed.
In Greece, in the Roman Republic and in Germanic law, the accusatory system prevailed, which, in general terms, had the following characteristics:
– prosecution, defense and jurisdiction exercised by different persons;
– the accusation handed over to a private individual;
– the contradictory;
– the freedom of the accused during the proceedings as a rule;
– the procedural truth established by the parties;
– the lack of power of the judge to intervene in the probative instruction;
– the initiation and progress of the proceedings depending on the activity of the parties;
– the accused as a subject of law.
The principles of legality, real truth, unavailability, official impulse and officiality, result from the unavailability of the object of the process (the substantial legal relationship that is investigated).
As the object of the accusatory process is available, those principles do not apply to it. There is no legality , since the beginning of the process depends on the will of the legitimated party to propose the action. The actual truth is undermined as the truth is established by the parties. There is availability , that is, the party can withdraw from the progress of the action. The official impulse is conditioned to the stimuli of the parties. The accusation, instead of being handed over to an organ of the State, official therefore, is exercised by individuals , by the offended party or by any of the people.
Aury Lopes Jr. and Alexandre Morais da Rosa: When the judge treats the Public Ministry as incapable or incompetent . Conjure
Flavio Meirelles Medeiros: The fable of equality in the criminal process . Conjure
Rivaldo Pereira Neto: Unofficial powers in evidentiary matters and the impartiality of the criminal judge . Law School. University of Lisbon.
The inquisitive-type process, which was put into practice in the Roman imperial phase, reached its peak in the Middle Ages. Adopted by canon law, it then spread to European orders.
In the inquisitive type process, the functions of accusing, defending and judging were in charge of a single body. On occasions when the function of accusing was handed over to a different body, it belonged to the State, it was official. Provisional arrest of the accused was the rule and freedom the exception. Writing and secrecy prevailed. The powers of the judge were broad, who, being in charge of initiating, progressing and probative instruction of the procedure, freely investigated the facts, taking whatever steps he deemed necessary. The accused was seen as an object of investigation. The value of the evidence was pre-established by law.
What distinguishes the accusatory system from the inquisitive? Certainly not its secondary forms like writing and secrecy in one, and orality and publicity in the other.
The essential difference between the two systems is widespread among writers as the following: in the process of the inquisitive type, the functions of accusing, defending and judging are exercised by a single body; in the prosecution, these functions are distributed among different bodies.
The understanding is correct, but not quite. This trait, pointed out as fundamental in the distinction, considers mere external conformations of the two systems. What substantially distinguishes them are the powers that are granted to the judge. In the accusatory type process, the judge does not have powers to investigate the truth, he judges according to the truth offered by the parties. In the inquisitorial, on the contrary, the judge has broad powers to investigate the facts. This is the essential difference between the two systems. The distribution of functions in the prosecution to different bodies is nothing more than a consequence of the impossibility of the judge instructing the cause: if it is not up to him to instruct, it is necessarily up to third parties. The delegation of functions in one system and the accumulation in another are accessory characteristics resulting from the essential difference pointed out.
Aury Lopes Jr: We don’t realize how primitive and inquisitorial our criminal procedure is. Conjure
For what the community wants today from criminal justice, neither one nor the other system, in its pure forms, represents a good instrument. The inquisitorial, granting broad powers to the judge, when well conducted facilitates the investigation of the real truth but, on the other hand, the guarantee it offers the accused and the tranquility it gives society are small.
The accusatory, in turn, granting greater peace of mind to the social environment, is not the best system for determining the real truth, with criminals remaining unpunished, especially when they are powerful.
Taking advantage of the advantages and seeking to overcome the disadvantages of pure systems, the mixed system appears. This system was adopted by the Code of Napoleon (1808) and, at present, is widely spread in the legal systems of civilized nations.
Among us, the mixed system prevails. The Brazilian criminal repressive system takes place in two phases or stages. The first phase is the police investigation, typically inquisitive: the accused may not initially know what he is accused of, there is the possibility of it being carried out in secrecy, there is practically no contradictory, the authority’s powers to investigate the fact are broad, etc. The second stage is accusatory: there is an adversarial process, different people are charged with the defense, the prosecution and the judgment, the prosecution precedes the defence, there is publicity, etc. But there are still some inquisitorial traces in the course of the process.
The unavailability of the material legal relationship limits the scope of the principles that derive from the meaning of the process as an individual guarantee, among them, the principles of ample defense and the accusatory. Not everything is handed over to the parties. The official impulse is a manifestation of the unavailability of the material legal relationship. If the accusatory principle were unlimited, the judge would not only be bound by the MP’s request for acquittal – and it is not – but this body could also, at any time, withdraw from the action. The process is accusatory. But this feature is mitigated by the principle of constitutional security, which inserts the unavailability of the material legal relationship into the process. What is inquisitorial in the process comes from the principle of constitutional security ( article 5, caput , andarticle 144, caput of CF ). And what it has as accusatory comes from its constitutional meaning as an individual guarantee ( article 5, item LV of the CF ).