Refer to: MEDEIROS, Flavio Meirelles. Code of Criminal Procedure Commented. https://flaviomeirellesmedeiros.com.br : 2019
or
MEDEIROS, Flavio Meirelles. Criminal Procedure Handbook. Porto Alegre: AIDE, 1987
CHAPTER 26 – GENERAL CONSIDERATIONS ON THE PRINCIPLES OF CRIMINAL PROCEDURAL LAW
What Principles Don’t Mean
What are the general principles of law? As Sonia Seganfredo perceives, determining the real meaning of this expression has been a rather controversial doctrinal issue (SEGANFREDO, Sonia Maria. opus cit. p. 87). Some meanings acquired by the term are inventoried by Paulo Dourado de Gusmão. General principles of law are those of natural law, established by reason (Del Vecchio); those of equity (Maggiore); those welcomed by cultured peoples; those established by jurisprudence (Pacchioni); those of Roman law (or those of common law) (GUSMÃO, Paulo Dourado de. – opus cit.P. 70). Two other meanings, originating in Italy, appear in the work of José Antonio Niño: the teachings contained in the works of ancient writers; those accepted by science (NIÑO, José Antonio – opus cit. p. 70). There is also the opinion of Zamora, for whom the general principles of law are the norms of ethical or moral content in su proyección hacia el derecho ( CASTILLO, Niceto Alcala y Zamora y LEVENE, Ricardo. opus cit. p. 154).
Investigating the general principles of law in the so-called natural law is an arduous task. The problem starts with the very concept of this right, which is imprecise. Equity is not the source from which principles spring. These are general rules intended for the manifold manifestations of life, while equity provides special rules.that adapt the generality of the law to specific cases. Jurisprudential and doctrinal activities can undoubtedly reveal the principles of law. But from there to saying that the principles are those established by the jurisprudence or by the doctrine, there is a big difference, since it significantly reduces the content of the institute. It should also be remembered, as Tornaghi does, that the principles are not to be confused with the rules, maxims and aphorisms enshrined by tradition (TORNAGHI, Hélio. opus cit . v. I, p. 160 ) .
What the principles mean
Determined that it is what the general principles of law are not, it is inquired, what they are. Miguel Reale teaches that the expression principles means “certain logical statements admitted as a condition or basis of validity of the other assertions that make up a given field of knowledge”. They are “fundamental truths of a system of knowledge, admitted as such because they are evident or because they have been proven, but also for practical reasons of an operational nature, that is, as assumptions required by the needs of research and practice” ( REALE , Miguel – opus cit . v. I, p. 299).
The general principles of law are rules contained in the legal system. They inform positive law, inspire its dispositions and enliven its unity. They are demonstrative elements of the meaning towards which the norms of law are directed. They constitute the bases and structure of the legal construction. Sometimes they are expressly contained in the normative order (example is the principle of broad defense in the Federal Constitution) and are perceived by their qualitative repetitions in legal provisions. At other times, they are implicitly contained in the law.
As legislation is made in compliance with certain principles, they are not external to the legal system. As Carnelutti teaches, “they are not something that exists outside the right , but within the self , since they are extracted only from the constituted norms”. And then he makes use of one of his comparisons: “ it is within the written right, as alcohol is within the wine” ( CARNELUTTI, Franciso – opus cit. Tomo I, p. 132).
This conception, now dominant in the doctrine, has already been endorsed by the Supreme Court of Mexico by means of a sentence, as transcribed: it must be understood by the general principles of law, not those that are used in the tradition of the courts, which em last analysis are nothing more than practices or customs that evidently do not have the force of law, nor the doctrines or rules invented by the jurisprudence, assuming that there is no among us whose opinion has legal force nor the one that has chosen the inventiveness of the conscience of um Judge, because this is contrary to the nature of the institutions that govern us, but rather the principles set forth in some of our laws…” ( CHILD, José Antonio. opus cit. p. 73).
A controversial issue is whether the general principles adopted by foreign legal systems are general principles of law. For Miguel Reale, it seems inadmissible to reduce the general principles of law “to the system of Positive Law” (REALE, Miguel. opus cit . v. I, p. 303). In our view, despite the authority of this eminent jurist, no: it seems admissible. The principles of other legal systems are, for us Brazilians, only general principles of law , as adopted by our positive law. As Coviello observes, the general principles“They can in fact be superior rational principles, of social ethics and also of principles of Roman law, and universally admitted by the doctrine; but they have value not because they are purely rational, ethical or of Roman and scientific law, but because they have effectively informed the positive system of our law and thus become principles of positive and current law” ( apud MAYNEZ, Eduardo Garcia . opus cit. p. 370).
Variable breadth of principles and method for investigating them
The extension of the general principles of law is variable. Some are “more general than others”. Some principles are of limited scope to criminal procedural law. Others belong to procedural law in general, affecting both civil and criminal instruments; there are also those that extend over all public law; and, finally, those valid for all positive law.
As already noted, the principles “made” the order. How the principles are “extracted” from the system is questioned. How are they revealed? How are they discovered? The answer is clearly provided by the jurist Paulo Dourado de Gusmão: “To achieve them, it is necessary to compare, generalize and progressively abstract all the laws in force in a country. Therefore, to find them, one must go back from norm to norm, from principle to principle, until reaching the most general, fundamental and unconditioned ones that structure and found positive law” (GUSMÃO, Paulo Dourado de. opus cit. p . 279).
Importance of principles
The importance of the general principles of law, and their study, lies in the fact that they are a subsidiary source of law.
For Hans Kelsen, the “equivocality or plurality of meanings of the term source of law makes it appear as legally worthless” (KELSEN, Hans. opus cit. p. 234). While recognizing that there is logic in the argument and conclusion of the professor from Vienna, our “faith” is that, in general terms, sources can be defined as those manifestations that express and externalize the law. And subsidiary sources can be conceptualized as those that lend assistance to the elaboration, interpretation and integration of the law .
Importance for the elaboration of the law
When intending to elaborate a Code, it is essential to first determine what will be the guiding principles of this text and, also, what will be the balance that will prevail between these principles. This subject was addressed in Eduardo Couture’s “imaginary class”: “How does the law develop the commandments of the Constitution? It would be a very naive view to limit oneself to believing that it does so by writing articles in a Code. Prior work to writing articles in a Code requires determining the principles that will govern that Code. What, in the first place, is presented to the legislator is not the task of writing laws, but that of formulating principles” (COUTURE, Eduardo. opus cit. p. 48).
Importance for the interpretation of law
Article 3 of the Brazilian Criminal Procedure Code prescribes that “the criminal procedural law will admit extensive interpretation and analogical application, as well as the supplement of the general principles of law”. Some writers, like Del Vecchio, express that the legislator orders the interpreter, first of all, to inquire whether, in relation to a certain controversy, there is a precise legal provision; then, for the negative hypothesis, he orders him to attend to the dispositions that regulate similar cases or analogous matters; and only in the last term, it is decided, when this second hypothesis is not fulfilled, it refers to the general principles of law ( apud MAYNEZ, Eduardo Garcia. opus cit. p.371.). By expressing themselves in this way, the writers imply thatonly resort to the general principles of law when in integration , after exhausting all other resources. What happens, however, is different. The interpretive task cannot be carried out without knowledge and attention to the informative principles of the law. The principles guide and lead the paths of the hermeneutic.
In interpretation, knowledge of the guiding principles of the standard is essential. They are “in the law written like alcohol in wine”. In interpretation, what happens is not, as we say without much technical concern, the application of the principle to the law to extract the norm from it, but the extraction of the norm together with the principle that integrates it.
It is, mainly, in the analysis of the systematic and evaluative elements that one perceives the influence that the principles of law have on the interpretative process.
It is the general principles of law that exert an important influence in granting unity to the legal system, which constitutes the foundation of the interpretation carried out with the use of the systematic element.
As for the evaluative element, the most valuable interpretation is the one that best meets the purposes of law (teleological) and the state of equilibrium of the principles of law.
It is essential to assess the value of the result of the interpretation. Law is part of culture and is indissolubly linked to life. It has to be interpreted in a way that satisfies the demands of life (Enneccerus, apud ESPÍNOLA FILHO, Eduardo. opus cit. v. I. p. 196).
The process has to be interested in the real truth, with the protection of innocence, with the effectiveness of the contradictory, with security and with fairness. They are principles of law in balance and harmony. The most valuable interpretation to be known must be the one that best meets the procedural legal relationship and preserves the balance and harmony of the inspiring principles of procedural law.
Importance for the integration of law
Also very important is the study of the general principles of law for the integrative process.
The legislator, comments professor Salgado Martins, “does not have the necessary omniscience to foresee or provide for the different norms that the legal relationship can assume” (MARTINS, José Salgado. opus cit. p. 97 ) .
Article 4 of the Law of Introduction to the Norms of Brazilian Law (Decree-Law n. 4.657/42) provides that when the law is silent , the judge must decide the matter in accordance with the analogy, customs and general principles of law . We then have, expresses Reale, that the legislator “is the first to recognize that the system of laws is not likely to cover the entire field of human experience, always leaving a large number of unforeseen situations, something that was impossible to be envisioned even by the legislator in the moment of the making of the law” (REALE, Miguel. opus cit . v. I, p. 300).
A gap in the law, writes Francesco Ferrara, “can arise either from a lack of regulation, or from an antinomy between two contradictory provisions of equal force that reciprocally elide” (FERRARA, Francesco. Interpretation and application of laws. São Paulo, Saraiva, 1934 , p. 58).
It is with the knowledge and use of the general principles of law that the regulatory norms of cases on which the law is silent are revealed. And it is interesting to note that just as the interpretation of the law does not dispense with integration through the principles of law, the integration that takes place through these does not dispense with interpretation. It is only by knowing, through interpretation, the meaning of legal texts, that analogy can be used. Only by penetrating the spirit of the law can one know the principles that inspire it.
The integration of criminal procedural law follows the order suggested by the Italian writer Giovanni Leone, resorting, first, to the general principles of the criminal procedural order; not finding the solution in them, resort to the principles of procedural order in general; 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).
Two constitutional principles give rise to two major principles of criminal procedure
Two constitutional principles give rise to two fundamental principles of criminal procedure . Two fundamental principles that are sometimes complementary to each other, and on many occasions, antagonistic.
Very often, interpreting the norm of criminal procedure means finding its most valuable meaning capable of preserving the balance and harmony of these two principles, even having to reduce the scope of one of them in favor of the other .
What are these two constitutional principles? What two procedural principles do these two constitutional principles give rise to?
When a certain individual commits an act that the law considers a crime, a legal relationship of criminal law is born at the same time, in which the State is the active subject with the subjective criminal right to punish and the offender is the passive subject with the duty to subject up to pity. On the other hand, while the citizen abstains from the commission of a crime, there is a legal relationship, also of criminal law, in which he occupies the active position holding the subjective criminal right of freedom (The only proceduralist that we found that mentions the “criminal law of freedom” is Professor Frederico Marques – in MARQUES, José Frederico. Manual de Direito Civil Procedural, 5th ed, São Paulo, Saraiva, 1977. V. I, p. 69), and the State the passive position, with the duty to ensure this same freedom.
The accused, in criminal proceedings, either committed the crime or not, or is guilty or not, or holds the subjective right to freedom or has a duty to be subject to the penalty (note that this duty is substantive, never procedural). , or occupies in that relationship of criminal law the active or the passive position.
Well, in our understanding, the object of the process is this substantial legal relationship , it is the determination, or rather, the individuation of this relationship, which is always present and contained in the procedural relationship, whether in the form of the right to punish, or under the form of the right to liberty.
For reasons that will be examined in due course, there is a relevant public interest in the individuation of the substantial relationship. And it is because this interest is public that the object of the process is unavailable .
The systematic interpretation, in which “comparison, generalization and progressive abstraction” of Brazilian criminal procedural law is used, allows us to conclude that this normative order is fundamentally concerned with the unavailability of the object of the process and with the meaning of the process . process as an individual guarantee. It is fundamentally concerned with maintaining a balance between these two principles. It is not a static balance, because, as will be felt in the chapters that follow, the law, not infrequently, restricts the amplitude of a principle to make prevail another one that it considers endowed with greater value to regulate the procedural relationship.
Constitutional origin
The unavailability of the object of the process , that is to say, of the substantive legal relationship, is based on articles 5o., caput , and 144 , caput of the CF. The first device referred to guarantees to all Brazilians and foreigners residing in the country the inviolability of the “ right to life, liberty and security ”. Article 144 of the CF, in turn, says that public security is the duty of the State, the right and responsibility of all, being exercised for the preservation of public order and the safety of people and property. The state’s duty to punish the guilty and ensure the freedom of the innocent stems from these provisions. It is the duty to “ ensure public safety“. It is the duty of “ not having the legal relationship of criminal law“. The duty to punish criminals and ensure peace and quiet for the honest citizen. This “principle of constitutional security” will be implicit in the substantive legal relationship of criminal law. And this relationship, being unavailable, will serve as the basis for some principles of criminal procedural law. What is inquisitorial in the process comes from the principle of constitutional security. 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. Were it not for this unavailability and its inquisitive character, if the accusatory principle did not suffer limitations, there would be no official impulse. The MP could decide whether or not to proceed with the process. This would give the promoter extraordinary negotiating power. Much superior to the power that is granted in the plea bargain, as there is judicial control in this.
Yes, the criminal process is inquisitive. In a small and necessary measure. Everything is a matter of getting the dosage right.
As for the meaning of the process as an individual guarantee , it emanates from article 5, item LV of the CF, according to which, the litigants, in judicial proceedings, and the accused in general are assured the contradictory and ample defense, with the means and resources inherent to it.
Doctrine
Gilmar Mendes: Fundamental rights and their multiple meanings in the constitutional order . gilmarmendes.com.br
Principles resulting from the unavailability of the object of the process
The unavailability of the object of the criminal procedure is the foundation of the principles of legality, real truth, officiality, official impulse and the unavailability of the process itself.
The principles of free conviction and immediacy stem, indirectly, from the unavailability of the object of the process and, directly, from the principle of real truth.
Principles that derive from the meaning of the process as a citizen’s guarantee
From the criminal procedure as a guarantee of the individual derive the principles of the adversary system, due process, the double degree of jurisdiction, the independence of the judge, the in dúbio pro reo, the initiative of the parties, the “ ne eat judex ultra petita partem” , of the natural judge, orality, presumption of innocence, ample defense and accusatory.
Vladimir Aras Doctrine
. Principles of Criminal Procedure . jus.com.br.
CHAPTER 27 – LEGALITY
Origin and scope
Criminal law is intended to act in the world of facts. Every citizen is, in principle, innocent, that is, that in the legal relationship of criminal law occupies the position of active subject as holder of the substantial right to freedom. However, when there are indications of a crime and that a certain person has committed it, doubts arise regarding the criminal legal relationship that binds him to the State. It is no longer known whether, in the criminal law relationship, that person occupies an active or passive position. The clarification of this doubt is of public interest, and, therefore, the State has the burden of clarifying and individualizing it. It is the obligation of the State to enforce criminal law.
The principle of legality, also called the principle of obligatoriness or inevitability of action, is based on the interest of the community in the performance of criminal law. It follows that the body in charge of promoting the criminal action does not have discretionary powers. If there is sufficient evidence of the commission of a crime and authorship, the Public Prosecutor’s Office has the obligation to promote criminal action.
The principle of legality does not apply only to criminal action and proceedings; its effectiveness extends to encompass all state prosecution activity. Thus, the principle also applies to police investigative activity. Faced with the occurrence of a fact with the appearance of a crime, the police authority has the legal duty to initiate investigations around it and its authorship.
Ancient writers, such as V, Kries and Birkmeyer, maintained that from the precepts of criminal law (“whoever does this is punished in this way”), one could draw the conclusion that not only does a public criminal claim arise from them, but also, at the same time, at the same time, the absolute duty of the state authorities to carry out the prosecution and punishment of the guilty ( apud SCHMIDT, Eberhard. opus cit. p. 221).
Today, it is argued that the persecutory obligation of the State is expressly derived from the procedural law. Article 24 of the Code of Criminal Procedure is categorical: “in crimes involving public action, this shall be promoted…”.
lack of protection of principle
In the Brazilian system, if there is sufficient evidence of crime and authorship, the Public Prosecutor’s Office has the obligation to initiate criminal proceedings, promoting the action. What if that body understands that the information it has is not enough? In this case, he does not promote criminal action. Does this “non-promotion” not represent a mitigation of the principle of legality? No, it just means that the abuse of power is not in the interest of the legal order. It would be an abuse of the power of denunciation if, faced with the slightest suspicion, citizens were subject to the inconveniences of being accused of criminal proceedings. The principle of legality prevails in our legal system without mitigation, since, when the Public Ministry chooses not to promote the action, determining the archiving of the informative pieces, it must present reasons; these reasons, which cannot be of convenience or utility, must be, rather, in the sense that there is no sufficient evidence of the commission of a crime or who is its author. What happens between us is that, if the Ministry arbitrarily decides, based on political criteria, not to promote the action, there is no way in the legal system to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). in the sense that there is not enough evidence of the commission of a crime or who is the author of it. What happens between us is that, if the Ministry arbitrarily decides, based on political criteria, not to promote the action, there is no way in the legal system to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). in the sense that there is not enough evidence of the commission of a crime or who is the author of it. What happens between us is that, if the Ministry arbitrarily decides, based on political criteria, not to promote the action, there is no way in the legal system to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). there is no legal way to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). there is no legal way to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action).
Opportunity
Opposite principle to legality is opportunity. For this, the action is not mandatory. It is activated or not, due to political criteria, convenience and social utility. The defect of opportunity is that it affronts the principle of equality (“all are equal before the law”), and can serve as an instrument of injustice. With him, justice would not inspire any confidence in the social milieu.
Exceptions
Legality is not absolute, it suffers from the exceptions of crimes of private action and those of public action conditioned to representation or request. In them, the exercise of the action depends on the will of individuals or the Minister of Justice.
CHAPTER 28 – UNAVAILABILITY
Origin
The criminal procedure is unavailable for an indirect reason. Its unavailability is mirrored by that of its object. There is public interest in determining the real legal relationship of criminal law that binds the State to the citizen, and it follows that the parties to the process do not have the power to dispose of that relationship.
normative symptoms
In some provisions of the Criminal Procedure Code, we are faced with express consequences of the principle of unavailability. Once the action is proposed, the Public Prosecutor’s Office cannot withdraw from it (article 42). Nor can he withdraw appeals that he has filed (art. 576). In crimes subject to public action, the judge may issue a condemnatory sentence even if the Public Prosecutor’s Office has given an opinion for acquittal (article 385). In crimes subject to conditional public action, representation is irreversible after the complaint has been filed ( article 25 ).
The unavailability of the material legal relationship also produces effects outside the process. By provision of Article 17 of the Code of Criminal Procedure, the police authority cannot order the file of the inquiry to be archived.
Also derive from the principle of unavailability the impossibility of carrying out, in criminal proceedings, those forms of composition of disputes that occur in the civil area, such as transaction, conciliation and arbitration commitment. The Public Prosecutor’s Office and the accused cannot make agreements, inside or outside the process, for the application of a less serious penalty or for the substitution of legal penalties for pecuniary compensation. Nor can they opt for a third judge: they can only judge the magistrate with jurisdiction and competence for the specific case.
The principle, as we have seen, also focuses on the appeal phase, prohibiting the withdrawal of an appeal filed by the Public Prosecutor’s Office, but, bearing in mind that the latter and the defense can choose between filing or not, and that the latter can withdraw from it, it is conclude that, at this stage, the device principle predominates.
Exceptions
An exception to the principle, in the Brazilian legal system, occurs in crimes of private action in which there is a provision on the relationship of criminal law through the institutes of pardon, waiver and peremption. There is also the award-winning delation, foreseen in some special laws, and the cases of composition of the special courts. There is also, in the special court, a hypothesis in which the Public Prosecutor’s Office may, if certain conditions are fulfilled, propose the immediate application (before offering the complaint) of a penalty restricting rights or fines. In crimes of tax evasion, evasion and misappropriation of social security contribution, the punitive claim is suspended while the installment payment is being paid, provided that the request for installment payment has been formalized before receipt of the complaint (see article 83 of Law n . 9,430/96). The criminal non-prosecution agreement contains one more possibility of availability of criminal action.
Rogerio Schietti Cruz Doctrine
: The Unavailability of Criminal Action (Previous Approach and Faced with Law 9099/95) . metajus.com.br.
CHAPTER 29 – REAL TRUTH
Formal truth in civil procedure
In civil proceedings, the judge, in order to decide the cases submitted to him, is normally content with the evidence and manifestations produced by the parties. For the realization of civil justice, the formal truth, also called conventional, fractional, limited truth, is sufficient. As Hellwig notes, in civil proceedings, as a rule, the State leaves it up to the parties to ensure that a judgment is rendered that corresponds to the true legal situation. From this availability of the parties, it follows that the sentence may not correspond to the real truth, without there being any inconvenience ( apud TORNAGHI, Hélio. opus cit . v. I, p. 346).
Real truth in civil procedure
The civil judge cannot be content with the truth provided by the parties when there is a public interest in the case to be decided.
If there is no public interest, the magistrate has only the right to investigate the real truth (this right can either be or not be exercised). If there is a public interest, there is a judicial obligation to investigate. Hypotheses of civil proceedings in which there is a public interest and a judicial duty to investigate the real truth are those, among others, in which there is an interest of the incapable, concerning the state of the person, paternal power, guardianship, guardianship, interdiction, marriage, declaration of absence, and dispositions of last will (see article 82 of the Code of Civil Procedure).
Real truth in criminal proceedings
In criminal proceedings, the principle of real truth prevails. It follows that there is always a public interest in the just solution of criminal disputes. Even in proceedings whose object is the decision on a crime of private action, the public interest is present.
About the real truth, also called substantial, historical, effective, objective material truth, Florian comments that the effort in its search must concern the process; must master it. It is a matter of public interest that delinquents be punished and the innocent acquitted based on what they are, what they committed, what they wanted to do (FLORIAN, Eugenio. opus cit. p. 59 ) .
The truth sought in criminal proceedings is that which, in Allegra’s definition, is the suitability of the intellect with the known thing, the knowledge as it conforms to the thing it represents. For the judgment to be correct, it is necessary that the reality of the facts conform to the idea that one has of them ( apud MARICONDE, Alfredo Velez. opus cit. v. II, p. 90).
All those facts of the real world on which criminal rules may apply must be investigated in the procedural activity. Not only are the circumstances of the crime investigated in order to obtain certainty as to the authorship: the antecedents, the personality, the intensity or degree of guilt of the agent and the motives and consequences of the crime are also inquired, so that determine the amount of penalty to be imposed. Even the actual financial situation of the accused matters so that the penalty of fine can be fixed.
Considering that the accusatory principle is in force, the judge must await the initiative of the MP requesting diligence. The judge should not, ex officio, put himself to investigate. His impartiality would be compromised. Who should trace the truth to present it to the judge is the MP, and for that, the State and the law give him ample instruments.
The principle of real truth does not make the criminal process inquisitorial. What makes the process inquisitorial is the judge going, without any limitation, in search of it.
The investigation of the real truth is a characteristic of the inquisitive process, but it is not the main one. The main difference between the two systems is that in the accusatory type process, the judge does not have powers to investigate the truth. In the inquisitorial, on the contrary, the judge has broad powers to investigate the facts. The important thing, therefore, is to limit – without totally excluding – the judge’s power to order ex officio diligences.
It is in line with the concern for truth in criminal proceedings that evidence does not have a pre-established value. The expert report, for example, does not have the power to bind the opinion of the magistrate, who may disagree with it (principle of free conviction).
It is from this concern that also originates the procedural circumstance that the judge receives evidence directly from the source from which it emanates (principle of immediacy).
As we have said elsewhere, the principles of free conviction and immediacy proceed from the principle of real truth.
Real truth in criminal proceedings and formal truth in civil proceedings – Confrontation
In civil proceedings, after the sentence becomes final, the decision may be reversed through rescission action, but there is a preclusive legal deadline to propose it; in criminal proceedings, no. The review action (improperly called an appeal), which, in terms of purposes, is analogous to the rescission action, can be proposed at any time, even after the convict has served the sentence. It is a symptom of the principle under study, which expands to surpass the limits of res judicata.
Other symptoms of the validity of the principle in the criminal area and satisfaction with the conventional truth in non-criminal proceedings are the different consequences that confession produces in one and another area. In that, the confession is proof of relative value, since it must be interpreted in observation of the other evidence; and in the latter, its value is almost absolute ( almost , since the admission to court of facts relating to unavailable rights does not count as a confession). Default implies confession in civil proceedings, which does not occur in criminal proceedings.
Formal truth in criminal proceedings
The first exception noted to the principle of real truth in criminal proceedings is the impossibility of prosecuting again or revising the acquitted defendant’s file to convict him, even in the face of new and flagrant evidence of guilt. Once the accused is acquitted and the sentence becomes final, there is no way to reformulate it. Formal truth is yielded to for political and security reasons. Another exception is the impossibility, on appeal, of convicting a defendant acquitted in the first instance without an appeal from the prosecution. Even if, in the time between the filing and judgment, new evidence arises against the defendant, the Court cannot condemn when judging the appeal filed only by the defense. The hypothesis is remote, as it is rare for the acquitted to appeal, but it is not impossible, or rather, unfeasible.
Recent criticisms of the principle of real truth
Although the thesis has notable followers, we do not agree with the idea that the search for truth transforms the judge into an inquisitor. The search for the real truth is not the function of the judge, but the principle of the process. The process seeks the truth. It never reaches it, since we live in a different dimension of reality, where the truth resides. We live in a projection of reality that is projected into our consciousness through the senses (reality is projected into our consciousness just as a film positive is projected from a projector onto a movie screen) and which is then distorted by moods and fantasies. of our unconscious. Truth or reality is an etherthat permeates men and each one absorbs it individually. The process seeks to get close to the truth, but only in what matters: whether or not there is proof of the criminal hypothesis described in the initial accusation. What actually happened is only important to the extent that it serves to establish whether there is such evidence and whether it is relevant to the application of criminal law. The way in which the process seeks to approach the truth is through due process and other principles: ample defense, contradictory, accusatory, impulse, official, etc. If the judge becomes an inquisitor, under the justification of going after the real truth (real truth is a tautology, but this expression has been used to distinguish it from the so-called formal truth), he is, on the contrary, rejecting the application of the principle of real truth. Inquisitorially, he sneaks away from the truth to meet his subjective ideations. The inquisitive judge is the denial of the real truth. In the Brazilian criminal repression system, the inquisitive phase, of collecting evidence, of partiality, has its turn: the police inquiry. Once it is over, the procedural contradictory begins. It is where the truth will be established, with initiatives by the parties and contradictory, with the magistrate as an equidistant observer.
It must be made clear: the search for truth in criminal proceedings (principle of real truth) does not result in the granting of inquisitorial powers to the judge. On the contrary. It entails the prohibition of judicial inquisitoriness, since this leads to the partiality of the judgment. He who inquires seeks, and he who seeks aims to demonstrate something. Those who inquire do not seek the truth, but seek indications (indications) of their hypothesis. The search for truth imposes a passive attitude. You can’t get too close to it driving one-way. It is necessary for her to approach walking between two paths. Only the double hand of the contradictory is able to give a broader view of the investigated object, an idea closer to what we call truth.
But the ban on the judge’s power to act ex officio is not absolute. There is inquisitoriality in the criminal process. Mitigated, but there. The accusatory system has been overvalued, as if it were capable of solving all the problems of criminal procedure. If the accusatory system were adopted in its purity, it would lead to mismanagement of the process. The following principles, among others, would be excluded: that of real truth, that of official impulse and that of officialdom. The examination of the body of the crime, which is mandatory, is a result of the principle of real truth. The judge could not propelthe process and, consequently, the Public Prosecutor’s Office would have absolute control over the progress of criminal actions. The prosecution would be able to assemble an extensive file of criminal defendants with suspended proceedings. The Public Prosecutor’s Office would have the right to punish countless defendants with an expiry date up to the statute of limitations. This would give the promoter extraordinary negotiating power. The principles of legality and legal certainty would go down the drain. And with regard to officialdom , without it, the prosecution would be carried out by private individuals, which would be a historical setback.
One cannot confuse the purpose of the process (getting as close as possible to the real truth) with the method to arrive at it (inquisitive or contradictory). Seeking the truth does not imply inquisitive instruction. On the contrary. This is the diversion. It is a violation of procedural law and the CF. Inquisition is only useful for investigative phases with collection of evidentiary material, never for procedural instruction and search for the truth. This is why the inquiry is inquisitive. What is process? The process is guaranteed. It is a guarantee because it is time to put the test to the test.
In the title Unreachable Truth and the Defender Never Misses the Truth in the subtitle The Defender Never Misses the Truth , in comments on Article 155 , we seek to explain which dimension of truth is operated in Justice.
It is not up to the judge to replace the accuser, since, as provided for in article 129 of the CF, item I , the Public Ministry’s institutional functions are: to promote, privately, public criminal action, as provided by law . However, since it is the exclusive competence of the Public Prosecutor’s Office to promote criminal action, the judge cannot interfere, supplementing, assisting, supporting and complementing the ministerial activity. A judge is not a substitute or substitute for the accuser. He bears no responsibility for the accusation. On this subject, see the title The Prosecution Orders, The Defense Asks. The fable of equality in the criminal process , in comments to article 156. Regarding the trajectory taken by the facts witnessed by the witness until they became versions recorded in the records, see the subtitle Interferences in the truth and in the testimony of the title Testimony and truth in comments to article 202 . The proximity of the real truth (since reaching it is impossible) is distorted with the investigation of the trade and is sought with the initiative of the parties and with the contradictory.
Finally, there is no basis to support that the principle of real truth transforms the criminal procedure into an inquisitive one. The objective of the process cannot be confused with the method of reaching it, and the search for truth is not a function of the judge, but the purpose of the process. The purpose of the process is to determine which conviction is related to the initial imputation. The method is accusatory, but with exceptional concessions to the inquisitive, as the criminal process is also informed by the constitutional principle of security.
Video
Flavio Meirelles Medeiros: Criminal proceedings still seek the real truth .
Doctrine
Afrânio Silva Jardim: The principle of real truth in criminal proceedings: a necessary explanation . Emporium of law.
Alexandre Morais da Rosa: For those of you who believe in real truth, a hug . Conjure
Eduardo Samoel Fonseca: Verdade Real has served as a kind of wildcard in the procedural game . Conjure
Rogerio Schietti Cruz: The procedural truth in Ferrajoli . ibccrim.org.br.
CHAPTER 30 – PHYSICAL IDENTITY
quick considerations
The principle of the physical identity of the judge means that the judge who hears the evidence must be the one who passes the sentence. It originates from the rule of real truth.
The principle is not absolute. If the judge is summoned, promoted, retired, disbanded, removed, his successor may validly pass sentence.
CHAPTER 31 – IMMEDIATION
Meaning
Evidence can be received immediately or immediately.
Eberhard Schmidt, with examples, makes these two ways of receiving evidence clear: in the case where an offensive expression must be proved, anyone who has heard this manifestation can be questioned as a witness, thus receiving the evidence immediately. . If, on the contrary, a person is questioned who has been informed of the offense by someone who has witnessed it, we are faced with a mediated reception of the evidence (SCHMIDT, Eberhard. opus cit. p. 262 ) .
It is known that joke in which one person whispers a sentence to the other, and this, in turn, to a third and so on, until the last one declares what he heard, and then, comparing it with the first sentence, it is verified a huge inconsistency.
It is to avoid damage to the truth, which can occur with the interposition of a third party between the judge and the evidence, that the principle of immediacy prevails in the process. This principle means that the judge receives the evidence directly from its origin.
Symptoms
Among us, it is as a result of the principle of immediacy that, between hearing the witness in person and the one who knows the facts through third parties, the judge must prefer the former. This principle also results in the magistrate’s duty to question the accused who appears in court, who, in turn, cannot give power of attorney to another for the act; that is to say, who interrogates is the judge and only the judge, and who is interrogated is the defendant and only the defendant. There is also a judicial duty, whenever possible, to question the offended party. Another manifestation of the principle is in article 11 of the Code of Criminal Procedure, which determines that the instruments of the crime, as well as the objects that are of interest to the evidence, must be sent to court together with the investigation records.
Exceptions
As Schmidt notes, the full realization of the principle of immediacy would lead to such a wide decrease in the possibilities of proof that the administration of criminal justice would become impossible (SCHMIDT, Eberhard – opus cit. p. 263 ) .
The presence of the interpreter between the witness (or the document) and the judge; that of the expert between the examined object and the judge; photographs and recordings between the fact and the fact represented and the judge are exceptions to the principle of immediacy. Carnelutti (CARNELUTTI, Francisco – Estudios de derecho procesal. Buenos Aires, Ediciones Juridicas Europa-America. 1952, v. I, p. 114) goes further to consider even the presence of the defender placed between the accused and the judge as an exception to the principle of immediacy.
CHAPTER 32 – FREE CONVICTION
legal proof
There are basically two regulatory systems for the judicial evaluation of evidence: the system of legal evidence and that of free conviction.
By the principle of legal evidence, whose study, today, has become the responsibility of the history of law, the evidence is evaluated by the judge according to criteria pre-established by law. With it, the evidence has a hierarchical value.
Torture, since antiquity, has been used for various purposes. It was used by the ancients and in medieval times by the Inquisition.
By the Persians, however, it was used as an accessory penalty, because, as Thoth narrates, they “used torture only against those sentenced to death; so that it was not in order to extract their confession, but only to cause them torment, before the death penalty was carried out” (THOT, Ladislao – Historia de las antiguas intituiciones de derecho penal. Buenos Aires , Talleres ).
Torture, in addition to being a means of obtaining a confession that was considered legal evidence, was itself an instrument for obtaining evidence.
Thoth reports that in Roman law the general principle accepted was that the confession or declaration of a slave, in the character of accused or witness, without distinction, could not have legal value, unless it had been made under the action of torture (THOT, Ladislao – opus cit. p. 272).
In his conclusions to the historical study of torture, Thoth points out that its legal basis was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed to the commission of the crime and the respective guilt.
free conviction
The French Revolution represents a landmark that separates, in history, the principle of free conviction from the principle of legal proof.
While in the system of legal evidence the magistrate evaluated the evidence by legal criteria, in that of free conviction he assesses the value of evidence through a critical-rational process, aided by logical rules and lessons from experience.
Free conviction is a technical term. As such it must be understood. Arises to oppose the system of legal proof. It does not mean that the judge, when examining the evidence, can be convinced freely and as he sees fit. Nor does it have the meaning that the judge can go out, on his own, in search of evidence. It just means that the judge is not subject to pre-established amounts of evidence. Free conviction is motivated. Consequently, it must be based on evidence. Evidence is the set of evidence that authorizes the conviction as to the existence of a certain fact. As the conviction needs to be authorized (by the teachings of experience and rules of probability), the freedom of appreciation of the proof is not total, it is subjugated to the rules of experience and probability.
That of free conviction is the principle we adopt. In our system, the judge is not, at the time of evaluating the test, restricted to that number of norms that, in past times, regulated this phase. A very clear symptom of this freedom of subjective judgment, in Brazilian law, is that the magistrate can decide even contrary to the opinion of the experts contained in the technical reports.
Limits to free conviction
On the other hand, free conviction, if taken to its extremes, would make us return to that system called intimate conviction, according to which the magistrate decides based on his conscience, without the duty to base his decision on any other element than be your particular criteria. Such a system is not adequate, since, as Manzini says, the only legitimate source of conviction must derive from the facts examined and declared in the records, and not just from psychological (internal) elements of the judge, unrelated to these same facts ( apud MARICONDE, Alfredo Velez . opus cit. v. II, p. 91).
Limiting the judge’s freedom in evaluating the evidence are the principles of ample defense and the contradictory. These two principles constrain that of free conviction to put it in its proper place. It is as a result of them that the judge decides freely, but based on the evidence contained in the file. The judge cannot form his conviction inspired by facts that he became aware of extra-procedurally. Only the element of evidence that the parties have been given the opportunity to contradict lends itself to forming the judge’s conviction.
The principle of free conviction is limited by the full defense and contradictory principle, also because, although the judge can freely assess the evidence, he must clarify the reasons why he reached a certain decision. How could the party with an interest in reforming the decision motivate its appeal without knowing the reasons that led to that decision? Sometimes they might presume them; others, I could try to guess them, but there would never cease to be damage to the integrity of the contradictory (in the appeal, when the party makes a critical assessment of the judge’s reasons, there is contradiction) and the broad constitutional defense.
Detachment from the records and need for motivation
In our procedural legal system, the limits imposed on the principle of free conviction by the obligation to state reasons for the decision and by the requirement to do so based on the elements of conviction contained in the case file do not exist only in the trial by jury. There, the juror, never expressing the reasons for his conviction, can judge considering elements foreign to the file, such as, for example, personal aspects of the accused, and even decide against the evidence. What the jury cannot do is decide manifestly against the evidence in the file. However, if in the same case submitted to its competence it is decided twice, nothing can be done.
Exceptions to the principle of free conviction
There are two exceptions to the adopted principle of free conviction. The first is that the appealed judge cannot sentence if the accused was acquitted by the lower court without an appeal by the prosecution. In this case, no matter how serene the conviction of the appealed judge as to the guilt of the accused, he will not be able to issue a condemnatory decree. It is the prohibition of reformatio in pejus , which constitutes an exception not only to free conviction, but also to the principle of real truth.
Another exception concerns the examination of the corpus delicti. There can be no conviction without an examination of the corpus delicti in infractions that leave direct or indirect traces. Here, in our process, a remnant of the regime of legal evidence can be verified, which, in our opinion, must be preserved.
CHAPTER 33 – OFFICIALITY
Reason
There is public interest in determining the legal relationship that binds the State to the citizen. This interest stems from the unavailability of the substantial legal relationship, which is the subject of the proceeding. From the unavailability of the object of the process, it follows that the State’s right to investigate it is also a duty. Being a duty of the State, it cannot be entrusted to individuals as they could, for various reasons, prefer inertia. Hence the reason for the institution of its own body for the promotion of criminal action, which is the Public Prosecutor’s Office. This is the official body in charge of promoting criminal action.
Extension
All the principles of the process that originate from the unavailability of its object extend to also act on police activity, since the object of the police investigation is also unavailable. It is also unavailable for the simple reason that it is the same as that of the process: the specification of the legal relationship of criminal law that binds the State to the individual. In this way, the principles of legality, unavailability, real truth, official impulse, as well as the officiality now under study, act on the process and on police investigative activity.
Exceptions
An exception to the principle of officiality occurs in private actions: the private action of the offended party (in crimes involving private action) and the subsidiary private action (in crimes involving public action, when the Public Prosecutor’s Office does not bring the action within the legal period). Criminal action subject to representation is not an exception to the principle because, even depending on an individual’s act of will, it is proposed by an official body – by the Public Prosecutor’s Office.
Another exception to officiality is the action that can be filed by any person of the people in crimes of responsibility committed by Ministers of the Federal Supreme Court and by the Attorney General of the Republic (Law 1079, of April 10, 1950 ) .
CHAPTER 34 – OFFICIAL IMPULSE
quick considerations
While for the action the principle of initiative of the parties prevails, for its continuation and progress, the official impulse prevails. By this principle, once the action is proposed, the judge has the obligation to forward it to his turn regardless of the will, acts and omissions of the parties.
The object of the process is unavailable and therefore the procedural activity cannot face impediments of any kind. If the party could oppose obstacles to the progress of the process, the principle of official impulse would be impaired. Hence the reason for establishing estoppel, whereby the party must perform the procedural act within the period that the law or the judge grants, under penalty of losing the opportunity to complete it.
If the accusatory principle did not find brakes on the official impulse, who would decide whether or not to proceed with the process would be the Public Prosecutor’s Office. The decision whether to punish or not would be entirely up to the prosecution. The accusatory principle derives from the meaning of the process as a guarantee. The official impulse stems from the unavailability of the material legal relationship. As can be seen, these are the principles balancing each other out. The systems too: accusatory/inquisitive. Official impulse is a typical feature of the inquisitive process. But not everything that is inquisitive is bad, as we stated elsewhere. The problems of criminal procedure cannot be solved by exalting the accusatory system. It is necessary to find the formula, the balance, the correct dosage. There are aspects of the inquisitorial system that must be maintained.
An exception to the principle of official impulse occurs in the private action of the offended, with the institutes of forgiveness and peremption.
CHAPTER 35 – CONTRADICTORY
Importance
The contradictory principle is undoubtedly one of the most important in criminal proceedings. Manifestation of this relevance is that it is constitutional. Unlike the other principles that influence the process, it is absolute, with no exceptions. Non-compliance with the contradictory is the most frequent cause of procedural nullities. The lack of denouncement, complaint, citation, defense, deadlines for the parties, subpoenas for the knowledge of the sentences from which appeals are applicable and other omissions result in the ineffectiveness of the process due to the damage caused to the contradictory.
As Couture says, “justice makes use of dialectics because the principle of contradiction is what allows, through the confrontation of opposites, to arrive at the truth” (COUTURE, Eduardo. opus cit. p. 66 ) .
Doctrine
Cirilo Augusto Vargas. The “dynamic” perspective of the adversarial principle . Anadep.
Consequences for the process
The contradictory principle has the following consequences:
1st – the party must be given the opportunity to state its reasons and to speak about those of the opposing party;
2nd – the party must be given the opportunity to speak about every element of evidence that enters the proceeding by act of the opposing party or the judge;
3rd – the party must be given the opportunity to bring evidence to the proceedings.
In order for the contradictory principle to be observed, it is not necessary for the party to effectively contradict the evidence in the file and the manifestations: it is enough that it is given the opportunity to do so.
As it was adopted by the Federal Constitution, any legal provision that contradicts the principle must be considered unconstitutional; therefore ineffective to regulate concrete cases.
CHAPTER 36 – COMPREHENSIVE DEFENSE
Origin
The defense represents in the process the interest in the acquittal of the innocent. It is a social interest insofar as the aspiration of the community is security and peace of mind, aspirations that would not be achieved if citizens were not sure that they would have an effective and participatory defense if they faced criminal proceedings.
As well as the contradictory principle, that of full defense comes from the meaning of the process as an individual guarantee, a meaning that does not exclude the meaning of the process as a guarantee of the collectivity itself.
Nature and implications
The defense, like the action, as to its nature, is right. It is constitutional right.
As, in the process, the prosecution is in charge of a body with technical and legal knowledge, the mandatory presence of a qualified defender is established to assist the defense of the accused, in order to place the defense in an equal position, as well as to reinforce the contradictory principle and to make possible the broad constitutional defense. The accused without financial conditions to hire a lawyer is defended by the Public Defender’s Office. Even the absent accused is not left without a defender.
It follows from the principle that the accusation must precede the defence. In order to be able to defend himself, the accused must first know exactly what the charge is against him and what evidence there is against him. The accused, as Mariconde says, must become aware of the accusation in a “concrete, express, clear, precise, detailed, comprehensive and timely manner”.
Constitution and code of criminal procedure
In 1987, on the occasion of the 1st. edition of our publication through the publishing house AIDE, we wrote: “In paragraph 15 of article 153, the Federal Constitution proclaims that ‘the law shall ensure the defendants full defense’ . It does not seem to us that the ordinary law, specifically referring to the Code of Criminal Procedure, has, in its regulation of the procedure, ensured full defense to the accused. According to the Code, the accused is questioned after the presentation of the initial accusation, before the witnesses are heard and before the measures determined ex officio or required by the parties are carried out. Now, if the law actually ensured the full defense of the accused, as ordered by the express constitutional norm, he would only be questioned after hearingall witnesses and brought to the trial all adverse evidence. The procedure, as regulated, is unconstitutional.”
Since then, the procedure has been changed, and the interrogation has become the last act of the instruction.
CHAPTER 37 – DUE PROCESS
Significance
By the principle of due process, the judge does not have the power to give the process the conformation he wants. He is not the one who decides what procedure will be adopted for the trial of the accused. The form of the procedural act – used here the expression “form” in its broad sense, to encompass the time, place and manner of the act – is provided for and regulated by law. Procedural judicial activity is subject to the law. The criminal procedure is only valid for resolving disputes when it is subject to criminal procedural rules.
Due process is that regulated by the rules of procedure in force to which the judge has a legal duty to submit the accused.
Protection
Procedural formalities are not useless ostentation. They represent guarantees of the parties. They are responsible for safeguarding the subjective procedural rights of litigants.
The principle of due process is assured to the parties by the procedural institute of nullities. If there is prejudice to the right due to the omission of an essential procedural formality, the aggrieved party may argue the nullity, claiming the declaration of procedural ineffectiveness.
All this does not mean that the process suffers from “ritual or formalistic passion”. The form is present in the process in order to protect rights. If it is set aside, it does not mean that the process is invalid. In order to declare the ineffectiveness of the process, due to the non-compliance with the formality, it is necessary to verify whether the objective of the act omitted in another way was achieved. If so, there is no question of procedural invalidity.
CHAPTER 38 – IMPARTIALITY AND INDEPENDENCE
Notion
Impartiality and independence are notions integrated into the concept of justice. Justice that decides in love or sacrifices its position to extraneous interests is inconceivable. In the progress of the process and in the decisions that compose it, it is up to the judge to take into account only the law and never the convenience for himself or for third parties.
Impartiality
It is to strengthen the impartiality of the judge that the parties to the proceedings act with partiality (the principle of the partiality of the parties and the impartiality of the judge). In the inquisitive procedure, there were no proper bodies to exercise the function of accusing, defending and judging. In this procedure, the three functions were handed over to a single person. The inquisitor judge was in charge of exercising the three functions simultaneously. It was an infeasible psychological task for the inquisitor to maintain the necessary impartiality to judge after having been entrusted with the promotion of the prosecution and the defense.
The principle of impartiality means a psychological state required of the judge at the beginning, in progress and in the final phase of the procedural activity. The impartial judge substitutes his prejudices and personal opinions for the will of the law; it does not allow itself to be influenced by the sympathy or intolerance of the parties. Also, the seriousness of the criminal hypothesis, object of the accusation, does not have the capacity to deviate him from the course of knowledge to the path of irrational judgment.
Protection of impartiality
Ensuring the impartiality of the judge, there are the procedural institutes of suspicion, impediment and bribery. While the first two generate a presumption of bias, the latter results in the certainty of bias. There is the presumption of partiality when one of the parties is a capital enemy, close friend, creditor, debtor or spouse of the judge, as examples of some legal hypotheses. Suspicion and impediment, when present, must be declared ex officio by the judge. If the latter, however, does not declare it, the parties are not left unprotected. The institute of nullities ensures the operation of the principle. Proceedings in which a judge was suspected, impeded or bribed is absolutely void. We have already commented on the subject in Nullities of Criminal Procedure,saying that, “regardless of whether or not the party has raised the objection of suspicion, it may claim nullity, at any time, by means of habeas corpus, if the defendant is imprisoned, even to the detriment of the res judicata. The nullity resulting from the suspicion and, by analogy, from the impediment, is absolute… if it is not argued in a timely manner, if the act otherwise reaches its end or if the party has accepted its effects, even if tacitly, little it matters: the eiva subsists and remains until it is declared and the procedural acts are redone by a judge who is not suspicious or unimpeded” (MEDEIROS, Flavio Meirelles. opus cit. , p. 67).
Independence
The judge could not be required to be impartial in deciding, if he were not granted and guaranteed independence to overcome the pressures of the most varied origins that are often surprised knocking on the doors of the Judiciary. Independence means that, when deciding, the magistrate is bound only by his conviction and the law. Nothing else influences his decision. Nor do the previous decisions of higher-level judges dictate the path to be taken. The judge of first instance can, in principle, judge in opposition to the jurisprudence that prevails in the superior instance, except in the case of a binding decision.
The judge’s independence is safeguarded by constitutional guarantees: tenure, irremovability and irreducibility of salaries. The following are provided for in article 95 of the CF:
I – life tenure, which, in the first degree, will only be acquired after two years of exercise, the loss of office, during this period, depending on the decision of the court to which the judge is bound, and, in other cases, on a judicial sentence passed in judged;
II – irremovability, except for reasons of public interest, pursuant to art. 93, VIII;
III – irreducibility of subsidy, except for the provisions of arts. 37, X and XI, 39, § 4, 150, II, 153, III, and 153, § 2, I.
CHAPTER 39 – DOUBLE DEGREE OF JURISDICTION
quick considerations
The judge’s decisions in the proceedings are subject to appeal. Appeal can be defined as the judicial review of a matter already decided. The appeal does not presuppose the initiative of the party, as there are appeals filed by the magistrate himself.
The possibility of appealing against certain decisions results in the need for another jurisdictional body to hear and judge it.
The principle of the double degree of jurisdiction means the guarantee, which the party has that a decision contrary to its interest is submitted to review by another jurisdictional body with powers of reform.
It is understood that the principle is not constitutional. It doesn’t seem like that. It is true that it was not expressly enshrined in the Constitution, but, taking into account that the Constitution itself “is responsible for assigning appellate competence to various jurisdictional bodies” (CINTRA, Antonio Carlos de Araujo; GRINOVER, Ada Pellegrini and DINAMARCO, Candido – opus cit., p. 43), it is to be considered protected by higher law, albeit implicitly.
CHAPTER 40 – IN DUBIO PRO REO
Substantive and procedural facts
In decision-making acts, the magistrate decides with the material contained in the case file. The records contain representation of facts. Some facts are of interest for the application of the criminal procedural norm and others for the substantive one. The fact of prejudice in nullities is of relevance to the rule of procedure. The facts related to the authorship, personality, background of the agent and the hypothesis itself, which is the object of the accusation, are of substantial relevance, as they are linked to criminal law.
certainty and doubt
Certainty and doubt are psychological states. The judge possesses certainty when he acquires the conviction that the fact mentally represented by him matches what actually happened. There is doubt when this conviction is lacking, that is, when the judge is unable to determine which of the hypotheses in fact admitted by him as possible matches the fact that actually occurred.
Burden of proof systems
For the magistrate to decide in the process, it is necessary to know the evidence. In civil proceedings, the burden of proof system prevails. There, the burden of proving the facts is shared between the parties. The author must prove the constitutive facts of his right, and the defendant will be responsible for proving the impeding, modifying or extinguishing facts of the author’s right.
Ineffectiveness of the onus system in criminal proceedings
In criminal proceedings, the magistrate does not judge according to the rules for distribution of evidence established in the civil area. According to Mariconde, “the principle in dubio pro reo absolutely excludes the probative burden of the accused; the latter does not have the duty to prove anything, although he has the right to do so, as he enjoys a legal situation that does not need to be constructed, but destroyed; if his guilt is not proven, he will remain innocent and, consequently, must be acquitted” (MARICONDE, Alfredo Vélez. opus cit., V.II, p. 34).
In the same sense, Manzini says that “negative proof, the demonstration of inculpability, in general, is not possible: claiming it would mean a logical absurdity and a manifest iniquity…” ( apud MARICONDE, Alfredo Vélez. opus cit . , V. II, p. 34).
Application of the principle in criminal proceedings
In criminal proceedings, the judge judges according to his conviction, resulting from the evidence brought to the proceedings by the parties or ex officio. Sometimes the evidence available to decide about a certain event is not clear enough, and hence the psychological state of doubt emerges. If, after exhausting all the legal means to exclude the possibilities that generate the doubt, the doubt nevertheless persists, the solution that presents itself is the application of the principle in dubio pro reo.
Facts to which it applies
It should be noted that the principle does not only apply to facts covered by criminal law (the occurrence of a typical fact, authorship, self-defense, for example, are facts whose incidence is affected by criminal law) – all facts of relevance to criminal justice, whether substantive or procedural, are subject to application of the principle.
An example of a fact on which the criminal procedural law focuses (fact of procedural relevance) and on which the principle is applicable, as we have already said, is the element of damage necessary for the declaration of procedural nullity.
When, in that subjective moment in which the judge judges about the declarability or not of the nullity of the procedural act, doubts occur to him as to the existence of real damage, he will be facing the so-called potential, doubtful, possible damage. It is opposed by actual harm, that which is materially and effectively verified.
Borges da Rosa vehemently defends the impossibility of declaring nullity, when the damage is potential: “the writers who maintain that damage or potential damage, which is nothing more than a presumption of damage or loss, also gives rise to nullity, they are those who have not completely freed themselves from the powerful influence exercised by the already relegated system of Romagnosi…” (a pud MEDEIROS, Flavio Meirelles. opus cit ., p. 37).
The eminent writer from Rio Grande do Sul is not right. It turns out that nullity is, by definition, an omission . As it is an omission (of an act or formality), it is often difficult to state that there was no loss if the process of the act or formalized was compared. This, however, is legally unfeasible. This infeasibility leaves in doubt as to the existence of damage (MEDEIROS, Flavio Meirelles – opus cit., p. 37.).
Considering that the verification of damage concerns the assessment of evidence, and that the principle in dubio pro reo is also applicable to facts of a procedural nature, it must be applied when the nullity of doubtful damage was favorable to the defense.
Meaning and foundation
The principle in dubio pro reo means that if the judge is in doubt, therefore not having conditions to convince himself that the fact occurred or is in a certain way, excluding another, he must decide that it has occurred or is of the way that is most favorable to the defendant.
Its foundation is in the very ultimate ends of criminal justice: the peace and security of citizens. The application of the principle gives everyone the security that they will never be convicted without sufficient proof, and hence, as a result, tranquility.
CHAPTER 41 – INITIATIVE OF THE PARTIES
quick considerations
Jurisdiction, while not provoked by the party, remains in a state of inertia. The judge does not grant jurisdiction without being encouraged to do so. A condition for judicial provision is the effective exercise of the right of action.
The principle of the initiative of the parties, also called the principle of action, translates the indispensability of the party’s request for the jurisdictional provision to be granted.
In order to initiate criminal proceedings, the initiative of the party is required. In crimes involving public action, it is incumbent upon the Public Ministry to carry out the action and, in cases involving private action, the offended party or whoever represents him.
If the same person bringing the action were to judge, it would be difficult for him, at this last moment, to maintain the necessary impartiality. Hence it is said that the principle of action reinforces that of impartiality.
CHAPTER 42 – NATURAL JUDGE
Significance
The aim of the natural judge principle is the protection of the individual from the tyrannies of power. Similar to the principle of precedence of criminal law – “there is no crime without a previous law that defines it, nor punishment without prior legal commission” -, that of the natural judge aims at protecting the citizen. Just as there is no crime without a previous law, there can be no proceedings before a judging body, without it being regularly invested with jurisdictional powers before the fact attributed to the accused.
The exceptional courts, known from the historical phases of the seizure of power, are repudiated by the principle of the natural judge.
The constitutional protection of the natural judge is found in two items: in items XXXVII and LIII of article 5 of the CF. He says that there will be no judgment or court of exception. It states that “no one will be prosecuted or sentenced except by the competent authority”. There is also the Pact of San José, Costa Rica, enacted by Decree n. 678/1992, which in Article 8, n.1 prescribes: “Every person shall have the right to be heard, with due guarantees and within a reasonable time, by a competent, independent and impartial judge or tribunal, previously established by law, in the investigation of any criminal accusation made against it, or in the determination of its rights and obligations of a civil, labor, fiscal or any other nature”. As can be seen from reading these regulations,
CHAPTER 43 – ADVERTISING
the secret process
A state’s penal repressive system can operate either secretly or publicly.
In the canonical inquisitive process, the generally adopted form was the secret of the acts of the procedure.
The secret form consists of: (1) only the judge has access to the proceedings; (2) the procedural acts are carried out with the presence only of the judge and the person being questioned (the investigated person, the witness…).
Beccaria
A voice that rose against the tyranny of secret trials and that reached the ears of the people was that of Cesare Bonesana, Marquis of Beccaria, when he proclaimed: “Let the trials be public; so may the evidence of the crime…” (BECCARIA, Cesare. opus cit. p. 50).
In one or another passage of his work “Dos delictos e das Penas” he explained the reasons why he abhorred secret accusations: “they are a manifest abuse, but consecrated and made necessary in several governments, due to the weakness of their constitution. Such usage makes men false and perfidious. He who suspects an informer in his fellow citizen immediately sees him as an enemy. Then, their own feelings tend to be masked; and the habit of hiding them from others causes them to be concealed from themselves soon” (BECCARIA, Cesare. opus cit. p. 55).
Reasons and advantages of the principle
The principle adopted by our legal system is that of publicity. The reason for the adoption is not, precisely, in the existence of public interest in determining the real bond that unites the State to the citizen. There are more historical, political and justice reasons than technical reasons that underlie it.
Indeed, there are several advantages that publicity has over secrecy:
1st – with publicity, the judge cannot be arbitrary, his activity and his decisions will always be monitored by the attention of public opinion;
2nd – the contact of the judge and his decisions with the public will make him increasingly aware of his responsibility and importance in the social context, thus encouraging him to improve himself;
3rd – this same contact prevents the judge from becoming a cold and dogmatic interpreter of legal texts, absolutely alienated from the social needs on which his decisions will produce effects;
4th – publicity represents an excellent brake against false accusations, because, as Beccaria questions, “who can defend himself against slander, when this is armed with the most solid shield of tyranny: secrecy?” (BECCARIA, Cesare. opus cit. p. 56);
5th – publicity gives greater security to the testimony, as the author of this will fear the denunciation of the people if he testifies falsely;
6th – public inspection of the defender’s activity provides greater assurance of its efficiency;
7th – only public justice can make sure that the clam is delivered to the ground. The secret is always mysterious, the mysterious is always mistrustful. Luchini’s words are borrowed: truth and justice cannot be separated and have secrets; justice requires light, so that in the agreement of the judge the conscience of society is reflected and vice versa; Otherwise, when the procedure unfolds in mystery, suspicion and discretion penetrate and dominate ( apud MARICONDE, Alfredo Vélez. opus cit., V.II, p. 87).
Distortion of principle
It must be warned, however, that publicity is an individual guarantee enacted for the benefit of the accused; never, to your detriment. Distortions in publicity, which lead to sensationalist disclosures, must be avoided, as it results in damage not only to justice but also to the accused who, in addition to having their privacy violated, suffers an accessory penalty not provided for by law even before, many times, let your guilt be decided.
wide and narrow
As we said, the principle of publicity prevails among us. This publicity is sometimes broad (popular publicity) and sometimes restricted to the parties.
As a rule, advertising, in the process, is popular. The interrogation hearings, questioning of witnesses, debates, are acts carried out with the doors open for access by any person of the people. Exceptionally, when it comes to the trial of minors, or when, in any case, the presence of the public is inconvenient for the order, the judge may determine that these acts be carried out behind closed doors, with the presence only of the parties, their representatives and the auxiliaries of justice.
As for the case records, the principle is applied restrictively. Strangers do not have access to them. The accused, represented by his lawyer, can examine the records and even have a look at them outside the registry office. Incidentally, lawyers may have a view of any process, even without a power of attorney, as long as it is not subject to judicial secrecy. The matter is regulated by Law 8.906/94 (Statute of the Brazilian Bar Association), in Article 7. (items XIII, XIV, XV and XVI) which provides that the lawyer has the right to:
XIII – examine, in any body of the Judiciary and Legislative Powers, or of the Public Administration in general, records of proceedings that have ended or are in progress, even without a power of attorney, when they are not subject to secrecy, ensuring that copies are obtained, with the possibility of taking notes;
XIV – examine, in any institution responsible for conducting an investigation, even without a power of attorney, records of flagrante delicto and investigations of any nature, completed or in progress, even if concluded by the authority, being able to copy parts and take notes, in physical or digital media;
XV – have a view of judicial or administrative proceedings of any nature, at a notary’s office or at the competent department, or withdraw them within the legal deadlines;
XVI – remove records of completed proceedings, even without a power of attorney, for a period of ten days ;
CHAPTER 44 – JUDICIAL BINDING TO THE ORDER OR PRINCIPLE OF CORRELATION
quick considerations
This principle means that, when deciding, the magistrate is bound to the factual hypothesis contained in the accusation. If the hypothesis object of the accusation is theft, the magistrate cannot issue a condemnatory sentence for homicide.
It is not the classification of the fact in the accusatory opening that establishes the contours of the decision, but the fact narrated therein.
The magistrate, without modifying the description of the fact contained in the complaint, may condemn the accused by a criminal provision other than that imputed to the accused in the initial accusation, even if he has to apply a more serious penalty. It is that the accused, in criminal proceedings, defends himself against facts and not devices. These are the rules “jura novit curia” (the judge takes care of the law) and “narra mihi factum dabo tibi jus” (tell me the facts and I will give you the law). In this case, the “amendatio libelli” is verified, which is a correction of the accusation and not an alteration (“mutatio libelli”).
If, as a result of the collection of evidence, it is possible to give a new legal definition to the fact imputed to the accused, the complaint must be amended. In view of the principle of correlation, there can be no condemnation for a fact not described in the complaint. Violation of this principle implies nullity of the sentence. In this case, there is no simple “amendatio libelli”, which is a correction of the accusation, a hypothesis dealt with in article 383 of the CPP, but rather an amendment (“mutatio libelli”).
CHAPTER 45 – FAVOR LIBERTATIS AND FAVOR KING
quick considerations
The principles of favor libertatis and favor rei are usually understood as synonyms. Leone distinguishes them (LEONE, Giovanni – opus cit., v. I, p. 188.). For the Italian treatise, favor libertatis must be understood as a principle by virtue of which all procedural instruments must tend towards the rapid restitution of the freedom of the accused who is deprived of it, when the conditions that legitimize the state of deprivation of liberty come to be lacking. . As for the king’s favor, defines it as the principle by virtue of which all procedural instruments must tend towards the declaration of certainty of the accused’s non-responsibility; it concerns not the state of personal freedom, but the declaration of certainty of a position of merit in relation to the news of the crime.
Video
Flavio Meirelles Medeiros: The presumption of innocence does not end at the second instance .
CHAPTER 46 – ORALITY
quick considerations
The main advantage of orality over writing is speed. The principle of orality was intensified with the arrival of the electronic process and the video recording of hearings and judgments. In the past, orality was impaired because there was no record of procedural acts performed orally. Today, with new technology, it is. With the current recorded orality system , in addition to speed, there is another advantage of orality over writing: it is the reliability of the record, since in the writing system what was said orally did not always coincide with what was written in the minutes .
CHAPTER 47 – CONCENTRATION
quick considerations
The principle of concentration, according to Chiovenda, means “gathering all the procedural activities intended for the instruction and progress of the case (evidence and discussion of the evidence) in a single hearing or in a few contiguous hearings” (CHIOVENDA, Giuseppe. opus cit . v . I, p. 52). Its objective, says Alsina, is “to speed up the process, eliminating procedures that are not essential, thereby obtaining a more concrete view of the dispute at the same time” (ALSINA, Hugo. opus cit. p. 267 ) .
It is especially in the plenary of the jury that the content of the principle of concentration is expressed. From the beginning to the end of the trial in plenary, a series of acts follow one another without postponing the decision. Among us, unlike what happens in other countries, the activity in plenary cannot be suspended by removing the jurors to their homes to return the next day. The trial cannot be interrupted (only a suspension for a reasonable period of time for rest or meals is allowed) and a series of acts are carried out: the drawing of lots for the seven jurors who will serve on the sentencing council, the interrogation of the accused, the cross-examination of witnesses, oral debates, the trial itself (which takes place in a secret room) and the publication of the sentence. In oral reading, by the President of the Court.
CHAPTER 48 – ECONOMY OR SPEED
Meaning and justification
The principle of economy in criminal procedure means granting justice in the least costly way for public coffers and in the fastest way. The principle, however, cannot be taken to extremes, to subtract procedural rights from the parties. Unlike the other principles dealt with, that of celerity derives neither from the significance of the process as a guarantee nor from the unavailability of the substantial legal relationship regulated by criminal law. Its justification should be investigated in the principles that inspire public administrative policy.
Consequences
Below are some of the effects produced by the principle in criminal proceedings:
– possibility of judging more than one accused and more than one factual hypothesis in a single process;
– concentration of acts in the hearings;
– possibility of extinguishing the process before the final sentence;
– nullity is not declared if the act otherwise reaches its end;
– the nullity of an act does not extend to those who do not depend on it;
– the fungibility of resources;
– the validity of non-decision-making acts performed by an incompetent judge;
– the impossibility of the party arguing the nullity, having no interest in its declaration;
– the impossibility of arguing the nullity by the person who caused it;
– the sanity of some nullities;
– the deadlines for claiming relative nullities.
Criminal justice and speed
Certain crimes, without a doubt, due to the seriousness and consequences they generate in the affected social environment, require brevity of the jurisdictional provision; others, of lesser severity, there is no such requirement. We affirm, and with all certainty, that a certain delay in the criminal prosecution of these less serious crimes is not a bad thing. The procedural activity exerts on the accused the same psychological effect of inhibiting the criminal conduct that is aimed by the penalty in the abstract, but in a much more intense way. The longer the process takes, the more time the accused will be given to socially readjust. Nothing is more educational than the agonizing wait for the process. Uncertainty as to the final outcome of the process (as to the sentence), puts the accused in a constant state of alert in social life, which often
These are the reasons why it is concluded that, while in civil proceedings the principle of procedural economy means cheap and quick justice , in criminal proceedings the content of the principle is reduced to justice that is not costly for public coffers. The need for haste in criminal justice is contingent, not a rule. The rapid criminal procedure can be harmful not only for the defense but also for the prosecution, as it favors the emergence of conditions that can lead to the non-observance of legal formalities that protect the rights of the parties.
CHAPTER 49 – ACCUSATORY PRINCIPLE
notions
The accusatory principle is constitutional. It is instituted by article 129, item I, of the CF , according to which, it is the institutional function of the Public Prosecutor’s Office to privately promote public criminal action.
Promoting means proposing and moving forward with action. It has the sense, mainly, of taking charge of making the requests that it deems necessary to prove the fact described in the opening document of the process. It is the Public Prosecutor’s Office who must propose the steps, as it is who must privately promote the criminal action.
One of the characteristics of the accusatory principle is to subtract from the judge the burden of searching for the real truth and transfer it to the prosecution.
CHAPTER 50 – PRESUMPTION OF INNOCENCE
The beginning
According to Leone, the principle of presumption of innocence was embraced by liberal legal thought and originated in the historic XIII Declaration of the Rights of Man and Citizen, when it stated: “Every man must be presumed innocent until he is found guilty…” (LEONE, Giovanni. opus cit., v. I, p. 464).
Na doutrina, Carrara was one of two who stood out in defense of the principle: There is in favor of the accused the presumption of innocence that assists every citizen; and this presumption is assumed by criminal science, which makes it its flag to oppose the accuser and the inquisitor, not in order to stop their movement in their legitimate course, but in order to restrict their ways, chaining them to a series of precepts that are a brake on discretion, an obstacle to error and, consequently, protection of the citizen” ( apud MARICONDE, Alfredo Vélez. opus cit., V.II, p. 21).
Couture followed this same understanding: “The facts are not many, but only one: the defendant is disturbed in his peace by the litigation. The right of petition is not harmless in its form of legal action. On the contrary, it is deeply disturbing the opponent’s peace of mind. The whole secret of this problem consists, then, in that the law has no alternative but to consider this opponent as innocent, until the day of the sentence” (COUTURE, Eduardo. opus cit., 1951 , p. 41).
Garofalo
The first criticisms of this doctrine, which Mariconde now calls a classic conception , came from Garófalo: “I believe that the principle weakens the procedural action of the State, because it constitutes an obstacle to making effective resolutions that go against the accused, especially in terms of detention preventive, favoring the freedom of the accused, even when it could constitute a common danger and a provocation to the victim of the crime, even when the guilt was evident by confession or flagrante delicto”. And then he concludes: “in the process, the accused must not be presumed innocent or guilty. It is what it is: imputed…” ( apud MARICONDE, Alfredo Vélez. opus cit., V.II, p. 23).
Water
Manzini, following Garófalo, severely criticized the doctrine of the presumption of innocence:If the criterion that criminal procedure rules are essentially aimed at the protection of innocence is erroneous, even more inaccurate is the opinion that in criminal proceedings a presumption of innocence is valid in favor of the accused, for which that same accused must be considered innocent while the irrevocable sentence of condemnation has not been mediated. Nothing more grossly paradoxical and irrational. Just think of preventive custody cases; in the secrecy of the investigation and in the very fact of the imputation. Since the latter presupposes sufficient evidence of delinquency, it should at least constitute a presumption of guilt. How then to admit that it is equivalent, instead, to the opposite, that is, to a presumption of innocence?…” ( apud MARICONDE, Alfredo Vélez.opus cit., V.II, p. 25).
The replica of Mariconde
In his reply to the criticisms made by Garófalo, Manzini, Mortara, Aloisi, Carrara, to the principle of the presumption of innocence, Mariconde ends up concluding that the principle does not enshrine a presumption, but a legal status of the accused, who is innocent as long as he is not declared guilty by a sentence. Mariconde also says that this conception does not preclude the existence of a presumption of guilt capable of justifying preventive coercive measures during the process.
Guilt and its meanings
What seems to be happening in this theme is a great confusion of concepts. Thus, before presenting our conclusions, we will fix the meanings of presumption and innocence.
According to Aurélio Buarque de Holanda, presumption is an opinion or judgment based on appearances. It is supposition, suspicion, conjecture. In its most legal sense, it is the conclusion drawn from a known fact in order to accept another unknown fact as true.
Guilt can be understood in three senses, all legal.
In criminal doctrine , guilt is one of the elements (the others are anti-juridicity and typicality of the conduct) that must be present for the configuration of the crime and is composed of the psychological nexus (intent or fault stricto sensu ), the imputability and the enforceability of another conduct .
In a much broader sense and of a substantial criminal nature , guilt is the legal relationship of criminal law that unites the State, holding the right to punish, to a specific criminal, who has the obligation to submit to the penalty. The expression innocence , with this same criminal substantial nature, is that other legal relationship regulated by criminal law, in which the citizen is an active subject with the right to freedom, with the State having the duty to ensure it. In other words, whoever actually committed a crime is guilty – a typical fact (provided for and described in criminal law), unlawful (contrary to the law) and culpable (presence of potential awareness of unlawfulness, imputability and enforceability of another conduct). He is innocent, under a substantial criminal aspect, who has not committed a crime.
In the procedural sense , whoever has been declared guilty by a conviction is guilty. The condemnatory sentence is declaratory of substantial criminal guilt and constitutive of the criminal procedure. In these terms, there is the legal status or legal situation of procedural innocence , while there is no conviction. In this procedural sense, innocence does not exist in the process as a presumption. Procedural innocence, while there is no sentence, is not admitted as true nor is it an unknown fact (see the concept of presumption enunciated above); it is true and it is a known fact. Under the procedural aspect, there is no judgment of innocence, presumption of innocence, established truthof innocence, what exists is the legal status or procedural legal situation of innocence.
In the criminal substantial meaning, innocence and guilt are eventualities. There are processes in which the accused has committed a crime, is guilty; others in which he is innocent, he has not committed a crime.
What is presumption of innocence
Fernando da Costa Tourinho Filho asks: “Is there a presumption of innocence or guilt? The subject is quite controversial. Therefore, as long as there is no final judgment, he will not have been guilty. (…) Flavio Medeiros, after studying the matter, concludes: “there is, as a rule, no presumption of substantial innocence, since the presumption, if any, may, depending on the evidence, be of guilt or innocence. There is no legal presumption of procedural innocence: as long as there is no conviction, the accused is innocent’” (Provisional Prison – Revista de Informação Legislativa, n. 122, pages 89).
Tourinho Filho cites the opinion we had at the time of the first edition of this Brief General Theory of the Process. We changed.
When referring to the presumption of innocence of the accused in criminal proceedings, the expression “presumption” is used in the usual, common sense.
Presumption is hypothesis, suspicion, estimation, prognosis, supposition. Assumption is the synonym that, it seems, best expresses the meaning we are dealing with.
Well then. Presumption of innocence is a normative demand on the judge’s psyche to assume that the accused is innocent, which is why he must evaluate the evidence and interpret the law in his favor. This is the concept of presumption of innocence.
It is a normative requirement because its provision stems from the Federal Constitution. It is a normative requirement of the psyche, because presumption is supposition, a psychic phenomenon. What is required is a psychic predisposition, a judgment, not a behavior.
Children of the presumption of innocence
The presumption of innocence has two children. A talkative, extroverted, and that’s why he’s more prestigious. It regulates the evaluation of evidence, it is the “in dubio pro reo” principle. Another, discreet, little known, very misunderstood (confused with his brother), but of vital importance, and which acts on the interpretation of norms, the principle of the “king’s favor”. According to the Italian author Giovanni Leone, the king’s favor “is the principle by virtue of which all procedural instruments must tend towards the declaration of certainty of the accused’s non-responsibility” (LEONE, Giovanni. Treaty de derecho penal procedural law. Buenos Aires, Legal Europe-America, 1963, v. I, p. 188). It is that the criminal procedural system, the procedural order, the criminal procedure, all of it, is an order of guarantee of fr
Refer to: MEDEIROS, Flavio Meirelles. Code of Criminal Procedure Commented. https://flaviomeirellesmedeiros.com.br : 2019
or
MEDEIROS, Flavio Meirelles. Criminal Procedure Handbook. Porto Alegre: AIDE, 1987
CHAPTER 26 – GENERAL CONSIDERATIONS ON THE PRINCIPLES OF CRIMINAL PROCEDURAL LAW
What Principles Don’t Mean
What are the general principles of law? As Sonia Seganfredo perceives, determining the real meaning of this expression has been a rather controversial doctrinal issue (SEGANFREDO, Sonia Maria. opus cit. p. 87). Some meanings acquired by the term are inventoried by Paulo Dourado de Gusmão. General principles of law are those of natural law, established by reason (Del Vecchio); those of equity (Maggiore); those welcomed by cultured peoples; those established by jurisprudence (Pacchioni); those of Roman law (or those of common law) (GUSMÃO, Paulo Dourado de. – opus cit.P. 70). Two other meanings, originating in Italy, appear in the work of José Antonio Niño: the teachings contained in the works of ancient writers; those accepted by science (NIÑO, José Antonio – opus cit. p. 70). There is also the opinion of Zamora, for whom the general principles of law are the norms of ethical or moral content in su proyección hacia el derecho ( CASTILLO, Niceto Alcala y Zamora y LEVENE, Ricardo. opus cit. p. 154).
Investigating the general principles of law in the so-called natural law is an arduous task. The problem starts with the very concept of this right, which is imprecise. Equity is not the source from which principles spring. These are general rules intended for the manifold manifestations of life, while equity provides special rules.that adapt the generality of the law to specific cases. Jurisprudential and doctrinal activities can undoubtedly reveal the principles of law. But from there to saying that the principles are those established by the jurisprudence or by the doctrine, there is a big difference, since it significantly reduces the content of the institute. It should also be remembered, as Tornaghi does, that the principles are not to be confused with the rules, maxims and aphorisms enshrined by tradition (TORNAGHI, Hélio. opus cit . v. I, p. 160 ) .
What the principles mean
Determined that it is what the general principles of law are not, it is inquired, what they are. Miguel Reale teaches that the expression principles means “certain logical statements admitted as a condition or basis of validity of the other assertions that make up a given field of knowledge”. They are “fundamental truths of a system of knowledge, admitted as such because they are evident or because they have been proven, but also for practical reasons of an operational nature, that is, as assumptions required by the needs of research and practice” ( REALE , Miguel – opus cit . v. I, p. 299).
The general principles of law are rules contained in the legal system. They inform positive law, inspire its dispositions and enliven its unity. They are demonstrative elements of the meaning towards which the norms of law are directed. They constitute the bases and structure of the legal construction. Sometimes they are expressly contained in the normative order (example is the principle of broad defense in the Federal Constitution) and are perceived by their qualitative repetitions in legal provisions. At other times, they are implicitly contained in the law.
As legislation is made in compliance with certain principles, they are not external to the legal system. As Carnelutti teaches, “they are not something that exists outside the right , but within the self , since they are extracted only from the constituted norms”. And then he makes use of one of his comparisons: “ it is within the written right, as alcohol is within the wine” ( CARNELUTTI, Franciso – opus cit. Tomo I, p. 132).
This conception, now dominant in the doctrine, has already been endorsed by the Supreme Court of Mexico by means of a sentence, as transcribed: it must be understood by the general principles of law, not those that are used in the tradition of the courts, which em last analysis are nothing more than practices or customs that evidently do not have the force of law, nor the doctrines or rules invented by the jurisprudence, assuming that there is no among us whose opinion has legal force nor the one that has chosen the inventiveness of the conscience of um Judge, because this is contrary to the nature of the institutions that govern us, but rather the principles set forth in some of our laws…” ( CHILD, José Antonio. opus cit. p. 73).
A controversial issue is whether the general principles adopted by foreign legal systems are general principles of law. For Miguel Reale, it seems inadmissible to reduce the general principles of law “to the system of Positive Law” (REALE, Miguel. opus cit . v. I, p. 303). In our view, despite the authority of this eminent jurist, no: it seems admissible. The principles of other legal systems are, for us Brazilians, only general principles of law , as adopted by our positive law. As Coviello observes, the general principles“They can in fact be superior rational principles, of social ethics and also of principles of Roman law, and universally admitted by the doctrine; but they have value not because they are purely rational, ethical or of Roman and scientific law, but because they have effectively informed the positive system of our law and thus become principles of positive and current law” ( apud MAYNEZ, Eduardo Garcia . opus cit. p. 370).
Variable breadth of principles and method for investigating them
The extension of the general principles of law is variable. Some are “more general than others”. Some principles are of limited scope to criminal procedural law. Others belong to procedural law in general, affecting both civil and criminal instruments; there are also those that extend over all public law; and, finally, those valid for all positive law.
As already noted, the principles “made” the order. How the principles are “extracted” from the system is questioned. How are they revealed? How are they discovered? The answer is clearly provided by the jurist Paulo Dourado de Gusmão: “To achieve them, it is necessary to compare, generalize and progressively abstract all the laws in force in a country. Therefore, to find them, one must go back from norm to norm, from principle to principle, until reaching the most general, fundamental and unconditioned ones that structure and found positive law” (GUSMÃO, Paulo Dourado de. opus cit. p . 279).
Importance of principles
The importance of the general principles of law, and their study, lies in the fact that they are a subsidiary source of law.
For Hans Kelsen, the “equivocality or plurality of meanings of the term source of law makes it appear as legally worthless” (KELSEN, Hans. opus cit. p. 234). While recognizing that there is logic in the argument and conclusion of the professor from Vienna, our “faith” is that, in general terms, sources can be defined as those manifestations that express and externalize the law. And subsidiary sources can be conceptualized as those that lend assistance to the elaboration, interpretation and integration of the law .
Importance for the elaboration of the law
When intending to elaborate a Code, it is essential to first determine what will be the guiding principles of this text and, also, what will be the balance that will prevail between these principles. This subject was addressed in Eduardo Couture’s “imaginary class”: “How does the law develop the commandments of the Constitution? It would be a very naive view to limit oneself to believing that it does so by writing articles in a Code. Prior work to writing articles in a Code requires determining the principles that will govern that Code. What, in the first place, is presented to the legislator is not the task of writing laws, but that of formulating principles” (COUTURE, Eduardo. opus cit. p. 48).
Importance for the interpretation of law
Article 3 of the Brazilian Criminal Procedure Code prescribes that “the criminal procedural law will admit extensive interpretation and analogical application, as well as the supplement of the general principles of law”. Some writers, like Del Vecchio, express that the legislator orders the interpreter, first of all, to inquire whether, in relation to a certain controversy, there is a precise legal provision; then, for the negative hypothesis, he orders him to attend to the dispositions that regulate similar cases or analogous matters; and only in the last term, it is decided, when this second hypothesis is not fulfilled, it refers to the general principles of law ( apud MAYNEZ, Eduardo Garcia. opus cit. p.371.). By expressing themselves in this way, the writers imply thatonly resort to the general principles of law when in integration , after exhausting all other resources. What happens, however, is different. The interpretive task cannot be carried out without knowledge and attention to the informative principles of the law. The principles guide and lead the paths of the hermeneutic.
In interpretation, knowledge of the guiding principles of the standard is essential. They are “in the law written like alcohol in wine”. In interpretation, what happens is not, as we say without much technical concern, the application of the principle to the law to extract the norm from it, but the extraction of the norm together with the principle that integrates it.
It is, mainly, in the analysis of the systematic and evaluative elements that one perceives the influence that the principles of law have on the interpretative process.
It is the general principles of law that exert an important influence in granting unity to the legal system, which constitutes the foundation of the interpretation carried out with the use of the systematic element.
As for the evaluative element, the most valuable interpretation is the one that best meets the purposes of law (teleological) and the state of equilibrium of the principles of law.
It is essential to assess the value of the result of the interpretation. Law is part of culture and is indissolubly linked to life. It has to be interpreted in a way that satisfies the demands of life (Enneccerus, apud ESPÍNOLA FILHO, Eduardo. opus cit. v. I. p. 196).
The process has to be interested in the real truth, with the protection of innocence, with the effectiveness of the contradictory, with security and with fairness. They are principles of law in balance and harmony. The most valuable interpretation to be known must be the one that best meets the procedural legal relationship and preserves the balance and harmony of the inspiring principles of procedural law.
Importance for the integration of law
Also very important is the study of the general principles of law for the integrative process.
The legislator, comments professor Salgado Martins, “does not have the necessary omniscience to foresee or provide for the different norms that the legal relationship can assume” (MARTINS, José Salgado. opus cit. p. 97 ) .
Article 4 of the Law of Introduction to the Norms of Brazilian Law (Decree-Law n. 4.657/42) provides that when the law is silent , the judge must decide the matter in accordance with the analogy, customs and general principles of law . We then have, expresses Reale, that the legislator “is the first to recognize that the system of laws is not likely to cover the entire field of human experience, always leaving a large number of unforeseen situations, something that was impossible to be envisioned even by the legislator in the moment of the making of the law” (REALE, Miguel. opus cit . v. I, p. 300).
A gap in the law, writes Francesco Ferrara, “can arise either from a lack of regulation, or from an antinomy between two contradictory provisions of equal force that reciprocally elide” (FERRARA, Francesco. Interpretation and application of laws. São Paulo, Saraiva, 1934 , p. 58).
It is with the knowledge and use of the general principles of law that the regulatory norms of cases on which the law is silent are revealed. And it is interesting to note that just as the interpretation of the law does not dispense with integration through the principles of law, the integration that takes place through these does not dispense with interpretation. It is only by knowing, through interpretation, the meaning of legal texts, that analogy can be used. Only by penetrating the spirit of the law can one know the principles that inspire it.
The integration of criminal procedural law follows the order suggested by the Italian writer Giovanni Leone, resorting, first, to the general principles of the criminal procedural order; not finding the solution in them, resort to the principles of procedural order in general; 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).
Two constitutional principles give rise to two major principles of criminal procedure
Two constitutional principles give rise to two fundamental principles of criminal procedure . Two fundamental principles that are sometimes complementary to each other, and on many occasions, antagonistic.
Very often, interpreting the norm of criminal procedure means finding its most valuable meaning capable of preserving the balance and harmony of these two principles, even having to reduce the scope of one of them in favor of the other .
What are these two constitutional principles? What two procedural principles do these two constitutional principles give rise to?
When a certain individual commits an act that the law considers a crime, a legal relationship of criminal law is born at the same time, in which the State is the active subject with the subjective criminal right to punish and the offender is the passive subject with the duty to subject up to pity. On the other hand, while the citizen abstains from the commission of a crime, there is a legal relationship, also of criminal law, in which he occupies the active position holding the subjective criminal right of freedom (The only proceduralist that we found that mentions the “criminal law of freedom” is Professor Frederico Marques – in MARQUES, José Frederico. Manual de Direito Civil Procedural, 5th ed, São Paulo, Saraiva, 1977. V. I, p. 69), and the State the passive position, with the duty to ensure this same freedom.
The accused, in criminal proceedings, either committed the crime or not, or is guilty or not, or holds the subjective right to freedom or has a duty to be subject to the penalty (note that this duty is substantive, never procedural). , or occupies in that relationship of criminal law the active or the passive position.
Well, in our understanding, the object of the process is this substantial legal relationship , it is the determination, or rather, the individuation of this relationship, which is always present and contained in the procedural relationship, whether in the form of the right to punish, or under the form of the right to liberty.
For reasons that will be examined in due course, there is a relevant public interest in the individuation of the substantial relationship. And it is because this interest is public that the object of the process is unavailable .
The systematic interpretation, in which “comparison, generalization and progressive abstraction” of Brazilian criminal procedural law is used, allows us to conclude that this normative order is fundamentally concerned with the unavailability of the object of the process and with the meaning of the process . process as an individual guarantee. It is fundamentally concerned with maintaining a balance between these two principles. It is not a static balance, because, as will be felt in the chapters that follow, the law, not infrequently, restricts the amplitude of a principle to make prevail another one that it considers endowed with greater value to regulate the procedural relationship.
Constitutional origin
The unavailability of the object of the process , that is to say, of the substantive legal relationship, is based on articles 5o., caput , and 144 , caput of the CF. The first device referred to guarantees to all Brazilians and foreigners residing in the country the inviolability of the “ right to life, liberty and security ”. Article 144 of the CF, in turn, says that public security is the duty of the State, the right and responsibility of all, being exercised for the preservation of public order and the safety of people and property. The state’s duty to punish the guilty and ensure the freedom of the innocent stems from these provisions. It is the duty to “ ensure public safety“. It is the duty of “ not having the legal relationship of criminal law“. The duty to punish criminals and ensure peace and quiet for the honest citizen. This “principle of constitutional security” will be implicit in the substantive legal relationship of criminal law. And this relationship, being unavailable, will serve as the basis for some principles of criminal procedural law. What is inquisitorial in the process comes from the principle of constitutional security. 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. Were it not for this unavailability and its inquisitive character, if the accusatory principle did not suffer limitations, there would be no official impulse. The MP could decide whether or not to proceed with the process. This would give the promoter extraordinary negotiating power. Much superior to the power that is granted in the plea bargain, as there is judicial control in this.
Yes, the criminal process is inquisitive. In a small and necessary measure. Everything is a matter of getting the dosage right.
As for the meaning of the process as an individual guarantee , it emanates from article 5, item LV of the CF, according to which, the litigants, in judicial proceedings, and the accused in general are assured the contradictory and ample defense, with the means and resources inherent to it.
Doctrine
Gilmar Mendes: Fundamental rights and their multiple meanings in the constitutional order . gilmarmendes.com.br
Principles resulting from the unavailability of the object of the process
The unavailability of the object of the criminal procedure is the foundation of the principles of legality, real truth, officiality, official impulse and the unavailability of the process itself.
The principles of free conviction and immediacy stem, indirectly, from the unavailability of the object of the process and, directly, from the principle of real truth.
Principles that derive from the meaning of the process as a citizen’s guarantee
From the criminal procedure as a guarantee of the individual derive the principles of the adversary system, due process, the double degree of jurisdiction, the independence of the judge, the in dúbio pro reo, the initiative of the parties, the “ ne eat judex ultra petita partem” , of the natural judge, orality, presumption of innocence, ample defense and accusatory.
Vladimir Aras Doctrine
. Principles of Criminal Procedure . jus.com.br.
CHAPTER 27 – LEGALITY
Origin and scope
Criminal law is intended to act in the world of facts. Every citizen is, in principle, innocent, that is, that in the legal relationship of criminal law occupies the position of active subject as holder of the substantial right to freedom. However, when there are indications of a crime and that a certain person has committed it, doubts arise regarding the criminal legal relationship that binds him to the State. It is no longer known whether, in the criminal law relationship, that person occupies an active or passive position. The clarification of this doubt is of public interest, and, therefore, the State has the burden of clarifying and individualizing it. It is the obligation of the State to enforce criminal law.
The principle of legality, also called the principle of obligatoriness or inevitability of action, is based on the interest of the community in the performance of criminal law. It follows that the body in charge of promoting the criminal action does not have discretionary powers. If there is sufficient evidence of the commission of a crime and authorship, the Public Prosecutor’s Office has the obligation to promote criminal action.
The principle of legality does not apply only to criminal action and proceedings; its effectiveness extends to encompass all state prosecution activity. Thus, the principle also applies to police investigative activity. Faced with the occurrence of a fact with the appearance of a crime, the police authority has the legal duty to initiate investigations around it and its authorship.
Ancient writers, such as V, Kries and Birkmeyer, maintained that from the precepts of criminal law (“whoever does this is punished in this way”), one could draw the conclusion that not only does a public criminal claim arise from them, but also, at the same time, at the same time, the absolute duty of the state authorities to carry out the prosecution and punishment of the guilty ( apud SCHMIDT, Eberhard. opus cit. p. 221).
Today, it is argued that the persecutory obligation of the State is expressly derived from the procedural law. Article 24 of the Code of Criminal Procedure is categorical: “in crimes involving public action, this shall be promoted…”.
lack of protection of principle
In the Brazilian system, if there is sufficient evidence of crime and authorship, the Public Prosecutor’s Office has the obligation to initiate criminal proceedings, promoting the action. What if that body understands that the information it has is not enough? In this case, he does not promote criminal action. Does this “non-promotion” not represent a mitigation of the principle of legality? No, it just means that the abuse of power is not in the interest of the legal order. It would be an abuse of the power of denunciation if, faced with the slightest suspicion, citizens were subject to the inconveniences of being accused of criminal proceedings. The principle of legality prevails in our legal system without mitigation, since, when the Public Ministry chooses not to promote the action, determining the archiving of the informative pieces, it must present reasons; these reasons, which cannot be of convenience or utility, must be, rather, in the sense that there is no sufficient evidence of the commission of a crime or who is its author. What happens between us is that, if the Ministry arbitrarily decides, based on political criteria, not to promote the action, there is no way in the legal system to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). in the sense that there is not enough evidence of the commission of a crime or who is the author of it. What happens between us is that, if the Ministry arbitrarily decides, based on political criteria, not to promote the action, there is no way in the legal system to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). in the sense that there is not enough evidence of the commission of a crime or who is the author of it. What happens between us is that, if the Ministry arbitrarily decides, based on political criteria, not to promote the action, there is no way in the legal system to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). there is no legal way to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action). there is no legal way to overcome this inertia (unless there is a subsidiary private action). The principle of legality prevails without mitigation, although unprotected. The reason for the lack of protection is that, in particular, legality yields to the principle of the initiative of the parties. It was an option of the legislator who, based on political reasons, understood that the inertia of the jurisdiction was less than the self-provoked jurisdiction (the ex officio criminal action).
Opportunity
Opposite principle to legality is opportunity. For this, the action is not mandatory. It is activated or not, due to political criteria, convenience and social utility. The defect of opportunity is that it affronts the principle of equality (“all are equal before the law”), and can serve as an instrument of injustice. With him, justice would not inspire any confidence in the social milieu.
Exceptions
Legality is not absolute, it suffers from the exceptions of crimes of private action and those of public action conditioned to representation or request. In them, the exercise of the action depends on the will of individuals or the Minister of Justice.
CHAPTER 28 – UNAVAILABILITY
Origin
The criminal procedure is unavailable for an indirect reason. Its unavailability is mirrored by that of its object. There is public interest in determining the real legal relationship of criminal law that binds the State to the citizen, and it follows that the parties to the process do not have the power to dispose of that relationship.
normative symptoms
In some provisions of the Criminal Procedure Code, we are faced with express consequences of the principle of unavailability. Once the action is proposed, the Public Prosecutor’s Office cannot withdraw from it (article 42). Nor can he withdraw appeals that he has filed (art. 576). In crimes subject to public action, the judge may issue a condemnatory sentence even if the Public Prosecutor’s Office has given an opinion for acquittal (article 385). In crimes subject to conditional public action, representation is irreversible after the complaint has been filed ( article 25 ).
The unavailability of the material legal relationship also produces effects outside the process. By provision of Article 17 of the Code of Criminal Procedure, the police authority cannot order the file of the inquiry to be archived.
Also derive from the principle of unavailability the impossibility of carrying out, in criminal proceedings, those forms of composition of disputes that occur in the civil area, such as transaction, conciliation and arbitration commitment. The Public Prosecutor’s Office and the accused cannot make agreements, inside or outside the process, for the application of a less serious penalty or for the substitution of legal penalties for pecuniary compensation. Nor can they opt for a third judge: they can only judge the magistrate with jurisdiction and competence for the specific case.
The principle, as we have seen, also focuses on the appeal phase, prohibiting the withdrawal of an appeal filed by the Public Prosecutor’s Office, but, bearing in mind that the latter and the defense can choose between filing or not, and that the latter can withdraw from it, it is conclude that, at this stage, the device principle predominates.
Exceptions
An exception to the principle, in the Brazilian legal system, occurs in crimes of private action in which there is a provision on the relationship of criminal law through the institutes of pardon, waiver and peremption. There is also the award-winning delation, foreseen in some special laws, and the cases of composition of the special courts. There is also, in the special court, a hypothesis in which the Public Prosecutor’s Office may, if certain conditions are fulfilled, propose the immediate application (before offering the complaint) of a penalty restricting rights or fines. In crimes of tax evasion, evasion and misappropriation of social security contribution, the punitive claim is suspended while the installment payment is being paid, provided that the request for installment payment has been formalized before receipt of the complaint (see article 83 of Law n . 9,430/96). The criminal non-prosecution agreement contains one more possibility of availability of criminal action.
Rogerio Schietti Cruz Doctrine
: The Unavailability of Criminal Action (Previous Approach and Faced with Law 9099/95) . metajus.com.br.
CHAPTER 29 – REAL TRUTH
Formal truth in civil procedure
In civil proceedings, the judge, in order to decide the cases submitted to him, is normally content with the evidence and manifestations produced by the parties. For the realization of civil justice, the formal truth, also called conventional, fractional, limited truth, is sufficient. As Hellwig notes, in civil proceedings, as a rule, the State leaves it up to the parties to ensure that a judgment is rendered that corresponds to the true legal situation. From this availability of the parties, it follows that the sentence may not correspond to the real truth, without there being any inconvenience ( apud TORNAGHI, Hélio. opus cit . v. I, p. 346).
Real truth in civil procedure
The civil judge cannot be content with the truth provided by the parties when there is a public interest in the case to be decided.
If there is no public interest, the magistrate has only the right to investigate the real truth (this right can either be or not be exercised). If there is a public interest, there is a judicial obligation to investigate. Hypotheses of civil proceedings in which there is a public interest and a judicial duty to investigate the real truth are those, among others, in which there is an interest of the incapable, concerning the state of the person, paternal power, guardianship, guardianship, interdiction, marriage, declaration of absence, and dispositions of last will (see article 82 of the Code of Civil Procedure).
Real truth in criminal proceedings
In criminal proceedings, the principle of real truth prevails. It follows that there is always a public interest in the just solution of criminal disputes. Even in proceedings whose object is the decision on a crime of private action, the public interest is present.
About the real truth, also called substantial, historical, effective, objective material truth, Florian comments that the effort in its search must concern the process; must master it. It is a matter of public interest that delinquents be punished and the innocent acquitted based on what they are, what they committed, what they wanted to do (FLORIAN, Eugenio. opus cit. p. 59 ) .
The truth sought in criminal proceedings is that which, in Allegra’s definition, is the suitability of the intellect with the known thing, the knowledge as it conforms to the thing it represents. For the judgment to be correct, it is necessary that the reality of the facts conform to the idea that one has of them ( apud MARICONDE, Alfredo Velez. opus cit. v. II, p. 90).
All those facts of the real world on which criminal rules may apply must be investigated in the procedural activity. Not only are the circumstances of the crime investigated in order to obtain certainty as to the authorship: the antecedents, the personality, the intensity or degree of guilt of the agent and the motives and consequences of the crime are also inquired, so that determine the amount of penalty to be imposed. Even the actual financial situation of the accused matters so that the penalty of fine can be fixed.
Considering that the accusatory principle is in force, the judge must await the initiative of the MP requesting diligence. The judge should not, ex officio, put himself to investigate. His impartiality would be compromised. Who should trace the truth to present it to the judge is the MP, and for that, the State and the law give him ample instruments.
The principle of real truth does not make the criminal process inquisitorial. What makes the process inquisitorial is the judge going, without any limitation, in search of it.
The investigation of the real truth is a characteristic of the inquisitive process, but it is not the main one. The main difference between the two systems is that in the accusatory type process, the judge does not have powers to investigate the truth. In the inquisitorial, on the contrary, the judge has broad powers to investigate the facts. The important thing, therefore, is to limit – without totally excluding – the judge’s power to order ex officio diligences.
It is in line with the concern for truth in criminal proceedings that evidence does not have a pre-established value. The expert report, for example, does not have the power to bind the opinion of the magistrate, who may disagree with it (principle of free conviction).
It is from this concern that also originates the procedural circumstance that the judge receives evidence directly from the source from which it emanates (principle of immediacy).
As we have said elsewhere, the principles of free conviction and immediacy proceed from the principle of real truth.
Real truth in criminal proceedings and formal truth in civil proceedings – Confrontation
In civil proceedings, after the sentence becomes final, the decision may be reversed through rescission action, but there is a preclusive legal deadline to propose it; in criminal proceedings, no. The review action (improperly called an appeal), which, in terms of purposes, is analogous to the rescission action, can be proposed at any time, even after the convict has served the sentence. It is a symptom of the principle under study, which expands to surpass the limits of res judicata.
Other symptoms of the validity of the principle in the criminal area and satisfaction with the conventional truth in non-criminal proceedings are the different consequences that confession produces in one and another area. In that, the confession is proof of relative value, since it must be interpreted in observation of the other evidence; and in the latter, its value is almost absolute ( almost , since the admission to court of facts relating to unavailable rights does not count as a confession). Default implies confession in civil proceedings, which does not occur in criminal proceedings.
Formal truth in criminal proceedings
The first exception noted to the principle of real truth in criminal proceedings is the impossibility of prosecuting again or revising the acquitted defendant’s file to convict him, even in the face of new and flagrant evidence of guilt. Once the accused is acquitted and the sentence becomes final, there is no way to reformulate it. Formal truth is yielded to for political and security reasons. Another exception is the impossibility, on appeal, of convicting a defendant acquitted in the first instance without an appeal from the prosecution. Even if, in the time between the filing and judgment, new evidence arises against the defendant, the Court cannot condemn when judging the appeal filed only by the defense. The hypothesis is remote, as it is rare for the acquitted to appeal, but it is not impossible, or rather, unfeasible.
Recent criticisms of the principle of real truth
Although the thesis has notable followers, we do not agree with the idea that the search for truth transforms the judge into an inquisitor. The search for the real truth is not the function of the judge, but the principle of the process. The process seeks the truth. It never reaches it, since we live in a different dimension of reality, where the truth resides. We live in a projection of reality that is projected into our consciousness through the senses (reality is projected into our consciousness just as a film positive is projected from a projector onto a movie screen) and which is then distorted by moods and fantasies. of our unconscious. Truth or reality is an etherthat permeates men and each one absorbs it individually. The process seeks to get close to the truth, but only in what matters: whether or not there is proof of the criminal hypothesis described in the initial accusation. What actually happened is only important to the extent that it serves to establish whether there is such evidence and whether it is relevant to the application of criminal law. The way in which the process seeks to approach the truth is through due process and other principles: ample defense, contradictory, accusatory, impulse, official, etc. If the judge becomes an inquisitor, under the justification of going after the real truth (real truth is a tautology, but this expression has been used to distinguish it from the so-called formal truth), he is, on the contrary, rejecting the application of the principle of real truth. Inquisitorially, he sneaks away from the truth to meet his subjective ideations. The inquisitive judge is the denial of the real truth. In the Brazilian criminal repression system, the inquisitive phase, of collecting evidence, of partiality, has its turn: the police inquiry. Once it is over, the procedural contradictory begins. It is where the truth will be established, with initiatives by the parties and contradictory, with the magistrate as an equidistant observer.
It must be made clear: the search for truth in criminal proceedings (principle of real truth) does not result in the granting of inquisitorial powers to the judge. On the contrary. It entails the prohibition of judicial inquisitoriness, since this leads to the partiality of the judgment. He who inquires seeks, and he who seeks aims to demonstrate something. Those who inquire do not seek the truth, but seek indications (indications) of their hypothesis. The search for truth imposes a passive attitude. You can’t get too close to it driving one-way. It is necessary for her to approach walking between two paths. Only the double hand of the contradictory is able to give a broader view of the investigated object, an idea closer to what we call truth.
But the ban on the judge’s power to act ex officio is not absolute. There is inquisitoriality in the criminal process. Mitigated, but there. The accusatory system has been overvalued, as if it were capable of solving all the problems of criminal procedure. If the accusatory system were adopted in its purity, it would lead to mismanagement of the process. The following principles, among others, would be excluded: that of real truth, that of official impulse and that of officialdom. The examination of the body of the crime, which is mandatory, is a result of the principle of real truth. The judge could not propelthe process and, consequently, the Public Prosecutor’s Office would have absolute control over the progress of criminal actions. The prosecution would be able to assemble an extensive file of criminal defendants with suspended proceedings. The Public Prosecutor’s Office would have the right to punish countless defendants with an expiry date up to the statute of limitations. This would give the promoter extraordinary negotiating power. The principles of legality and legal certainty would go down the drain. And with regard to officialdom , without it, the prosecution would be carried out by private individuals, which would be a historical setback.
One cannot confuse the purpose of the process (getting as close as possible to the real truth) with the method to arrive at it (inquisitive or contradictory). Seeking the truth does not imply inquisitive instruction. On the contrary. This is the diversion. It is a violation of procedural law and the CF. Inquisition is only useful for investigative phases with collection of evidentiary material, never for procedural instruction and search for the truth. This is why the inquiry is inquisitive. What is process? The process is guaranteed. It is a guarantee because it is time to put the test to the test.
In the title Unreachable Truth and the Defender Never Misses the Truth in the subtitle The Defender Never Misses the Truth , in comments on Article 155 , we seek to explain which dimension of truth is operated in Justice.
It is not up to the judge to replace the accuser, since, as provided for in article 129 of the CF, item I , the Public Ministry’s institutional functions are: to promote, privately, public criminal action, as provided by law . However, since it is the exclusive competence of the Public Prosecutor’s Office to promote criminal action, the judge cannot interfere, supplementing, assisting, supporting and complementing the ministerial activity. A judge is not a substitute or substitute for the accuser. He bears no responsibility for the accusation. On this subject, see the title The Prosecution Orders, The Defense Asks. The fable of equality in the criminal process , in comments to article 156. Regarding the trajectory taken by the facts witnessed by the witness until they became versions recorded in the records, see the subtitle Interferences in the truth and in the testimony of the title Testimony and truth in comments to article 202 . The proximity of the real truth (since reaching it is impossible) is distorted with the investigation of the trade and is sought with the initiative of the parties and with the contradictory.
Finally, there is no basis to support that the principle of real truth transforms the criminal procedure into an inquisitive one. The objective of the process cannot be confused with the method of reaching it, and the search for truth is not a function of the judge, but the purpose of the process. The purpose of the process is to determine which conviction is related to the initial imputation. The method is accusatory, but with exceptional concessions to the inquisitive, as the criminal process is also informed by the constitutional principle of security.
Video
Flavio Meirelles Medeiros: Criminal proceedings still seek the real truth .
Doctrine
Afrânio Silva Jardim: The principle of real truth in criminal proceedings: a necessary explanation . Emporium of law.
Alexandre Morais da Rosa: For those of you who believe in real truth, a hug . Conjure
Eduardo Samoel Fonseca: Verdade Real has served as a kind of wildcard in the procedural game . Conjure
Rogerio Schietti Cruz: The procedural truth in Ferrajoli . ibccrim.org.br.
CHAPTER 30 – PHYSICAL IDENTITY
quick considerations
The principle of the physical identity of the judge means that the judge who hears the evidence must be the one who passes the sentence. It originates from the rule of real truth.
The principle is not absolute. If the judge is summoned, promoted, retired, disbanded, removed, his successor may validly pass sentence.
CHAPTER 31 – IMMEDIATION
Meaning
Evidence can be received immediately or immediately.
Eberhard Schmidt, with examples, makes these two ways of receiving evidence clear: in the case where an offensive expression must be proved, anyone who has heard this manifestation can be questioned as a witness, thus receiving the evidence immediately. . If, on the contrary, a person is questioned who has been informed of the offense by someone who has witnessed it, we are faced with a mediated reception of the evidence (SCHMIDT, Eberhard. opus cit. p. 262 ) .
It is known that joke in which one person whispers a sentence to the other, and this, in turn, to a third and so on, until the last one declares what he heard, and then, comparing it with the first sentence, it is verified a huge inconsistency.
It is to avoid damage to the truth, which can occur with the interposition of a third party between the judge and the evidence, that the principle of immediacy prevails in the process. This principle means that the judge receives the evidence directly from its origin.
Symptoms
Among us, it is as a result of the principle of immediacy that, between hearing the witness in person and the one who knows the facts through third parties, the judge must prefer the former. This principle also results in the magistrate’s duty to question the accused who appears in court, who, in turn, cannot give power of attorney to another for the act; that is to say, who interrogates is the judge and only the judge, and who is interrogated is the defendant and only the defendant. There is also a judicial duty, whenever possible, to question the offended party. Another manifestation of the principle is in article 11 of the Code of Criminal Procedure, which determines that the instruments of the crime, as well as the objects that are of interest to the evidence, must be sent to court together with the investigation records.
Exceptions
As Schmidt notes, the full realization of the principle of immediacy would lead to such a wide decrease in the possibilities of proof that the administration of criminal justice would become impossible (SCHMIDT, Eberhard – opus cit. p. 263 ) .
The presence of the interpreter between the witness (or the document) and the judge; that of the expert between the examined object and the judge; photographs and recordings between the fact and the fact represented and the judge are exceptions to the principle of immediacy. Carnelutti (CARNELUTTI, Francisco – Estudios de derecho procesal. Buenos Aires, Ediciones Juridicas Europa-America. 1952, v. I, p. 114) goes further to consider even the presence of the defender placed between the accused and the judge as an exception to the principle of immediacy.
CHAPTER 32 – FREE CONVICTION
legal proof
There are basically two regulatory systems for the judicial evaluation of evidence: the system of legal evidence and that of free conviction.
By the principle of legal evidence, whose study, today, has become the responsibility of the history of law, the evidence is evaluated by the judge according to criteria pre-established by law. With it, the evidence has a hierarchical value.
Torture, since antiquity, has been used for various purposes. It was used by the ancients and in medieval times by the Inquisition.
By the Persians, however, it was used as an accessory penalty, because, as Thoth narrates, they “used torture only against those sentenced to death; so that it was not in order to extract their confession, but only to cause them torment, before the death penalty was carried out” (THOT, Ladislao – Historia de las antiguas intituiciones de derecho penal. Buenos Aires , Talleres ).
Torture, in addition to being a means of obtaining a confession that was considered legal evidence, was itself an instrument for obtaining evidence.
Thoth reports that in Roman law the general principle accepted was that the confession or declaration of a slave, in the character of accused or witness, without distinction, could not have legal value, unless it had been made under the action of torture (THOT, Ladislao – opus cit. p. 272).
In his conclusions to the historical study of torture, Thoth points out that its legal basis was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed to the commission of the crime and the respective guilt.
free conviction
The French Revolution represents a landmark that separates, in history, the principle of free conviction from the principle of legal proof.
While in the system of legal evidence the magistrate evaluated the evidence by legal criteria, in that of free conviction he assesses the value of evidence through a critical-rational process, aided by logical rules and lessons from experience.
Free conviction is a technical term. As such it must be understood. Arises to oppose the system of legal proof. It does not mean that the judge, when examining the evidence, can be convinced freely and as he sees fit. Nor does it have the meaning that the judge can go out, on his own, in search of evidence. It just means that the judge is not subject to pre-established amounts of evidence. Free conviction is motivated. Consequently, it must be based on evidence. Evidence is the set of evidence that authorizes the conviction as to the existence of a certain fact. As the conviction needs to be authorized (by the teachings of experience and rules of probability), the freedom of appreciation of the proof is not total, it is subjugated to the rules of experience and probability.
That of free conviction is the principle we adopt. In our system, the judge is not, at the time of evaluating the test, restricted to that number of norms that, in past times, regulated this phase. A very clear symptom of this freedom of subjective judgment, in Brazilian law, is that the magistrate can decide even contrary to the opinion of the experts contained in the technical reports.
Limits to free conviction
On the other hand, free conviction, if taken to its extremes, would make us return to that system called intimate conviction, according to which the magistrate decides based on his conscience, without the duty to base his decision on any other element than be your particular criteria. Such a system is not adequate, since, as Manzini says, the only legitimate source of conviction must derive from the facts examined and declared in the records, and not just from psychological (internal) elements of the judge, unrelated to these same facts ( apud MARICONDE, Alfredo Velez . opus cit. v. II, p. 91).
Limiting the judge’s freedom in evaluating the evidence are the principles of ample defense and the contradictory. These two principles constrain that of free conviction to put it in its proper place. It is as a result of them that the judge decides freely, but based on the evidence contained in the file. The judge cannot form his conviction inspired by facts that he became aware of extra-procedurally. Only the element of evidence that the parties have been given the opportunity to contradict lends itself to forming the judge’s conviction.
The principle of free conviction is limited by the full defense and contradictory principle, also because, although the judge can freely assess the evidence, he must clarify the reasons why he reached a certain decision. How could the party with an interest in reforming the decision motivate its appeal without knowing the reasons that led to that decision? Sometimes they might presume them; others, I could try to guess them, but there would never cease to be damage to the integrity of the contradictory (in the appeal, when the party makes a critical assessment of the judge’s reasons, there is contradiction) and the broad constitutional defense.
Detachment from the records and need for motivation
In our procedural legal system, the limits imposed on the principle of free conviction by the obligation to state reasons for the decision and by the requirement to do so based on the elements of conviction contained in the case file do not exist only in the trial by jury. There, the juror, never expressing the reasons for his conviction, can judge considering elements foreign to the file, such as, for example, personal aspects of the accused, and even decide against the evidence. What the jury cannot do is decide manifestly against the evidence in the file. However, if in the same case submitted to its competence it is decided twice, nothing can be done.
Exceptions to the principle of free conviction
There are two exceptions to the adopted principle of free conviction. The first is that the appealed judge cannot sentence if the accused was acquitted by the lower court without an appeal by the prosecution. In this case, no matter how serene the conviction of the appealed judge as to the guilt of the accused, he will not be able to issue a condemnatory decree. It is the prohibition of reformatio in pejus , which constitutes an exception not only to free conviction, but also to the principle of real truth.
Another exception concerns the examination of the corpus delicti. There can be no conviction without an examination of the corpus delicti in infractions that leave direct or indirect traces. Here, in our process, a remnant of the regime of legal evidence can be verified, which, in our opinion, must be preserved.
CHAPTER 33 – OFFICIALITY
Reason
There is public interest in determining the legal relationship that binds the State to the citizen. This interest stems from the unavailability of the substantial legal relationship, which is the subject of the proceeding. From the unavailability of the object of the process, it follows that the State’s right to investigate it is also a duty. Being a duty of the State, it cannot be entrusted to individuals as they could, for various reasons, prefer inertia. Hence the reason for the institution of its own body for the promotion of criminal action, which is the Public Prosecutor’s Office. This is the official body in charge of promoting criminal action.
Extension
All the principles of the process that originate from the unavailability of its object extend to also act on police activity, since the object of the police investigation is also unavailable. It is also unavailable for the simple reason that it is the same as that of the process: the specification of the legal relationship of criminal law that binds the State to the individual. In this way, the principles of legality, unavailability, real truth, official impulse, as well as the officiality now under study, act on the process and on police investigative activity.
Exceptions
An exception to the principle of officiality occurs in private actions: the private action of the offended party (in crimes involving private action) and the subsidiary private action (in crimes involving public action, when the Public Prosecutor’s Office does not bring the action within the legal period). Criminal action subject to representation is not an exception to the principle because, even depending on an individual’s act of will, it is proposed by an official body – by the Public Prosecutor’s Office.
Another exception to officiality is the action that can be filed by any person of the people in crimes of responsibility committed by Ministers of the Federal Supreme Court and by the Attorney General of the Republic (Law 1079, of April 10, 1950 ) .
CHAPTER 34 – OFFICIAL IMPULSE
quick considerations
While for the action the principle of initiative of the parties prevails, for its continuation and progress, the official impulse prevails. By this principle, once the action is proposed, the judge has the obligation to forward it to his turn regardless of the will, acts and omissions of the parties.
The object of the process is unavailable and therefore the procedural activity cannot face impediments of any kind. If the party could oppose obstacles to the progress of the process, the principle of official impulse would be impaired. Hence the reason for establishing estoppel, whereby the party must perform the procedural act within the period that the law or the judge grants, under penalty of losing the opportunity to complete it.
If the accusatory principle did not find brakes on the official impulse, who would decide whether or not to proceed with the process would be the Public Prosecutor’s Office. The decision whether to punish or not would be entirely up to the prosecution. The accusatory principle derives from the meaning of the process as a guarantee. The official impulse stems from the unavailability of the material legal relationship. As can be seen, these are the principles balancing each other out. The systems too: accusatory/inquisitive. Official impulse is a typical feature of the inquisitive process. But not everything that is inquisitive is bad, as we stated elsewhere. The problems of criminal procedure cannot be solved by exalting the accusatory system. It is necessary to find the formula, the balance, the correct dosage. There are aspects of the inquisitorial system that must be maintained.
An exception to the principle of official impulse occurs in the private action of the offended, with the institutes of forgiveness and peremption.
CHAPTER 35 – CONTRADICTORY
Importance
The contradictory principle is undoubtedly one of the most important in criminal proceedings. Manifestation of this relevance is that it is constitutional. Unlike the other principles that influence the process, it is absolute, with no exceptions. Non-compliance with the contradictory is the most frequent cause of procedural nullities. The lack of denouncement, complaint, citation, defense, deadlines for the parties, subpoenas for the knowledge of the sentences from which appeals are applicable and other omissions result in the ineffectiveness of the process due to the damage caused to the contradictory.
As Couture says, “justice makes use of dialectics because the principle of contradiction is what allows, through the confrontation of opposites, to arrive at the truth” (COUTURE, Eduardo. opus cit. p. 66 ) .
Doctrine
Cirilo Augusto Vargas. The “dynamic” perspective of the adversarial principle . Anadep.
Consequences for the process
The contradictory principle has the following consequences:
1st – the party must be given the opportunity to state its reasons and to speak about those of the opposing party;
2nd – the party must be given the opportunity to speak about every element of evidence that enters the proceeding by act of the opposing party or the judge;
3rd – the party must be given the opportunity to bring evidence to the proceedings.
In order for the contradictory principle to be observed, it is not necessary for the party to effectively contradict the evidence in the file and the manifestations: it is enough that it is given the opportunity to do so.
As it was adopted by the Federal Constitution, any legal provision that contradicts the principle must be considered unconstitutional; therefore ineffective to regulate concrete cases.
CHAPTER 36 – COMPREHENSIVE DEFENSE
Origin
The defense represents in the process the interest in the acquittal of the innocent. It is a social interest insofar as the aspiration of the community is security and peace of mind, aspirations that would not be achieved if citizens were not sure that they would have an effective and participatory defense if they faced criminal proceedings.
As well as the contradictory principle, that of full defense comes from the meaning of the process as an individual guarantee, a meaning that does not exclude the meaning of the process as a guarantee of the collectivity itself.
Nature and implications
The defense, like the action, as to its nature, is right. It is constitutional right.
As, in the process, the prosecution is in charge of a body with technical and legal knowledge, the mandatory presence of a qualified defender is established to assist the defense of the accused, in order to place the defense in an equal position, as well as to reinforce the contradictory principle and to make possible the broad constitutional defense. The accused without financial conditions to hire a lawyer is defended by the Public Defender’s Office. Even the absent accused is not left without a defender.
It follows from the principle that the accusation must precede the defence. In order to be able to defend himself, the accused must first know exactly what the charge is against him and what evidence there is against him. The accused, as Mariconde says, must become aware of the accusation in a “concrete, express, clear, precise, detailed, comprehensive and timely manner”.
Constitution and code of criminal procedure
In 1987, on the occasion of the 1st. edition of our publication through the publishing house AIDE, we wrote: “In paragraph 15 of article 153, the Federal Constitution proclaims that ‘the law shall ensure the defendants full defense’ . It does not seem to us that the ordinary law, specifically referring to the Code of Criminal Procedure, has, in its regulation of the procedure, ensured full defense to the accused. According to the Code, the accused is questioned after the presentation of the initial accusation, before the witnesses are heard and before the measures determined ex officio or required by the parties are carried out. Now, if the law actually ensured the full defense of the accused, as ordered by the express constitutional norm, he would only be questioned after hearingall witnesses and brought to the trial all adverse evidence. The procedure, as regulated, is unconstitutional.”
Since then, the procedure has been changed, and the interrogation has become the last act of the instruction.
CHAPTER 37 – DUE PROCESS
Significance
By the principle of due process, the judge does not have the power to give the process the conformation he wants. He is not the one who decides what procedure will be adopted for the trial of the accused. The form of the procedural act – used here the expression “form” in its broad sense, to encompass the time, place and manner of the act – is provided for and regulated by law. Procedural judicial activity is subject to the law. The criminal procedure is only valid for resolving disputes when it is subject to criminal procedural rules.
Due process is that regulated by the rules of procedure in force to which the judge has a legal duty to submit the accused.
Protection
Procedural formalities are not useless ostentation. They represent guarantees of the parties. They are responsible for safeguarding the subjective procedural rights of litigants.
The principle of due process is assured to the parties by the procedural institute of nullities. If there is prejudice to the right due to the omission of an essential procedural formality, the aggrieved party may argue the nullity, claiming the declaration of procedural ineffectiveness.
All this does not mean that the process suffers from “ritual or formalistic passion”. The form is present in the process in order to protect rights. If it is set aside, it does not mean that the process is invalid. In order to declare the ineffectiveness of the process, due to the non-compliance with the formality, it is necessary to verify whether the objective of the act omitted in another way was achieved. If so, there is no question of procedural invalidity.
CHAPTER 38 – IMPARTIALITY AND INDEPENDENCE
Notion
Impartiality and independence are notions integrated into the concept of justice. Justice that decides in love or sacrifices its position to extraneous interests is inconceivable. In the progress of the process and in the decisions that compose it, it is up to the judge to take into account only the law and never the convenience for himself or for third parties.
Impartiality
It is to strengthen the impartiality of the judge that the parties to the proceedings act with partiality (the principle of the partiality of the parties and the impartiality of the judge). In the inquisitive procedure, there were no proper bodies to exercise the function of accusing, defending and judging. In this procedure, the three functions were handed over to a single person. The inquisitor judge was in charge of exercising the three functions simultaneously. It was an infeasible psychological task for the inquisitor to maintain the necessary impartiality to judge after having been entrusted with the promotion of the prosecution and the defense.
The principle of impartiality means a psychological state required of the judge at the beginning, in progress and in the final phase of the procedural activity. The impartial judge substitutes his prejudices and personal opinions for the will of the law; it does not allow itself to be influenced by the sympathy or intolerance of the parties. Also, the seriousness of the criminal hypothesis, object of the accusation, does not have the capacity to deviate him from the course of knowledge to the path of irrational judgment.
Protection of impartiality
Ensuring the impartiality of the judge, there are the procedural institutes of suspicion, impediment and bribery. While the first two generate a presumption of bias, the latter results in the certainty of bias. There is the presumption of partiality when one of the parties is a capital enemy, close friend, creditor, debtor or spouse of the judge, as examples of some legal hypotheses. Suspicion and impediment, when present, must be declared ex officio by the judge. If the latter, however, does not declare it, the parties are not left unprotected. The institute of nullities ensures the operation of the principle. Proceedings in which a judge was suspected, impeded or bribed is absolutely void. We have already commented on the subject in Nullities of Criminal Procedure,saying that, “regardless of whether or not the party has raised the objection of suspicion, it may claim nullity, at any time, by means of habeas corpus, if the defendant is imprisoned, even to the detriment of the res judicata. The nullity resulting from the suspicion and, by analogy, from the impediment, is absolute… if it is not argued in a timely manner, if the act otherwise reaches its end or if the party has accepted its effects, even if tacitly, little it matters: the eiva subsists and remains until it is declared and the procedural acts are redone by a judge who is not suspicious or unimpeded” (MEDEIROS, Flavio Meirelles. opus cit. , p. 67).
Independence
The judge could not be required to be impartial in deciding, if he were not granted and guaranteed independence to overcome the pressures of the most varied origins that are often surprised knocking on the doors of the Judiciary. Independence means that, when deciding, the magistrate is bound only by his conviction and the law. Nothing else influences his decision. Nor do the previous decisions of higher-level judges dictate the path to be taken. The judge of first instance can, in principle, judge in opposition to the jurisprudence that prevails in the superior instance, except in the case of a binding decision.
The judge’s independence is safeguarded by constitutional guarantees: tenure, irremovability and irreducibility of salaries. The following are provided for in article 95 of the CF:
I – life tenure, which, in the first degree, will only be acquired after two years of exercise, the loss of office, during this period, depending on the decision of the court to which the judge is bound, and, in other cases, on a judicial sentence passed in judged;
II – irremovability, except for reasons of public interest, pursuant to art. 93, VIII;
III – irreducibility of subsidy, except for the provisions of arts. 37, X and XI, 39, § 4, 150, II, 153, III, and 153, § 2, I.
CHAPTER 39 – DOUBLE DEGREE OF JURISDICTION
quick considerations
The judge’s decisions in the proceedings are subject to appeal. Appeal can be defined as the judicial review of a matter already decided. The appeal does not presuppose the initiative of the party, as there are appeals filed by the magistrate himself.
The possibility of appealing against certain decisions results in the need for another jurisdictional body to hear and judge it.
The principle of the double degree of jurisdiction means the guarantee, which the party has that a decision contrary to its interest is submitted to review by another jurisdictional body with powers of reform.
It is understood that the principle is not constitutional. It doesn’t seem like that. It is true that it was not expressly enshrined in the Constitution, but, taking into account that the Constitution itself “is responsible for assigning appellate competence to various jurisdictional bodies” (CINTRA, Antonio Carlos de Araujo; GRINOVER, Ada Pellegrini and DINAMARCO, Candido – opus cit., p. 43), it is to be considered protected by higher law, albeit implicitly.
CHAPTER 40 – IN DUBIO PRO REO
Substantive and procedural facts
In decision-making acts, the magistrate decides with the material contained in the case file. The records contain representation of facts. Some facts are of interest for the application of the criminal procedural norm and others for the substantive one. The fact of prejudice in nullities is of relevance to the rule of procedure. The facts related to the authorship, personality, background of the agent and the hypothesis itself, which is the object of the accusation, are of substantial relevance, as they are linked to criminal law.
certainty and doubt
Certainty and doubt are psychological states. The judge possesses certainty when he acquires the conviction that the fact mentally represented by him matches what actually happened. There is doubt when this conviction is lacking, that is, when the judge is unable to determine which of the hypotheses in fact admitted by him as possible matches the fact that actually occurred.
Burden of proof systems
For the magistrate to decide in the process, it is necessary to know the evidence. In civil proceedings, the burden of proof system prevails. There, the burden of proving the facts is shared between the parties. The author must prove the constitutive facts of his right, and the defendant will be responsible for proving the impeding, modifying or extinguishing facts of the author’s right.
Ineffectiveness of the onus system in criminal proceedings
In criminal proceedings, the magistrate does not judge according to the rules for distribution of evidence established in the civil area. According to Mariconde, “the principle in dubio pro reo absolutely excludes the probative burden of the accused; the latter does not have the duty to prove anything, although he has the right to do so, as he enjoys a legal situation that does not need to be constructed, but destroyed; if his guilt is not proven, he will remain innocent and, consequently, must be acquitted” (MARICONDE, Alfredo Vélez. opus cit., V.II, p. 34).
In the same sense, Manzini says that “negative proof, the demonstration of inculpability, in general, is not possible: claiming it would mean a logical absurdity and a manifest iniquity…” ( apud MARICONDE, Alfredo Vélez. opus cit . , V. II, p. 34).
Application of the principle in criminal proceedings
In criminal proceedings, the judge judges according to his conviction, resulting from the evidence brought to the proceedings by the parties or ex officio. Sometimes the evidence available to decide about a certain event is not clear enough, and hence the psychological state of doubt emerges. If, after exhausting all the legal means to exclude the possibilities that generate the doubt, the doubt nevertheless persists, the solution that presents itself is the application of the principle in dubio pro reo.
Facts to which it applies
It should be noted that the principle does not only apply to facts covered by criminal law (the occurrence of a typical fact, authorship, self-defense, for example, are facts whose incidence is affected by criminal law) – all facts of relevance to criminal justice, whether substantive or procedural, are subject to application of the principle.
An example of a fact on which the criminal procedural law focuses (fact of procedural relevance) and on which the principle is applicable, as we have already said, is the element of damage necessary for the declaration of procedural nullity.
When, in that subjective moment in which the judge judges about the declarability or not of the nullity of the procedural act, doubts occur to him as to the existence of real damage, he will be facing the so-called potential, doubtful, possible damage. It is opposed by actual harm, that which is materially and effectively verified.
Borges da Rosa vehemently defends the impossibility of declaring nullity, when the damage is potential: “the writers who maintain that damage or potential damage, which is nothing more than a presumption of damage or loss, also gives rise to nullity, they are those who have not completely freed themselves from the powerful influence exercised by the already relegated system of Romagnosi…” (a pud MEDEIROS, Flavio Meirelles. opus cit ., p. 37).
The eminent writer from Rio Grande do Sul is not right. It turns out that nullity is, by definition, an omission . As it is an omission (of an act or formality), it is often difficult to state that there was no loss if the process of the act or formalized was compared. This, however, is legally unfeasible. This infeasibility leaves in doubt as to the existence of damage (MEDEIROS, Flavio Meirelles – opus cit., p. 37.).
Considering that the verification of damage concerns the assessment of evidence, and that the principle in dubio pro reo is also applicable to facts of a procedural nature, it must be applied when the nullity of doubtful damage was favorable to the defense.
Meaning and foundation
The principle in dubio pro reo means that if the judge is in doubt, therefore not having conditions to convince himself that the fact occurred or is in a certain way, excluding another, he must decide that it has occurred or is of the way that is most favorable to the defendant.
Its foundation is in the very ultimate ends of criminal justice: the peace and security of citizens. The application of the principle gives everyone the security that they will never be convicted without sufficient proof, and hence, as a result, tranquility.
CHAPTER 41 – INITIATIVE OF THE PARTIES
quick considerations
Jurisdiction, while not provoked by the party, remains in a state of inertia. The judge does not grant jurisdiction without being encouraged to do so. A condition for judicial provision is the effective exercise of the right of action.
The principle of the initiative of the parties, also called the principle of action, translates the indispensability of the party’s request for the jurisdictional provision to be granted.
In order to initiate criminal proceedings, the initiative of the party is required. In crimes involving public action, it is incumbent upon the Public Ministry to carry out the action and, in cases involving private action, the offended party or whoever represents him.
If the same person bringing the action were to judge, it would be difficult for him, at this last moment, to maintain the necessary impartiality. Hence it is said that the principle of action reinforces that of impartiality.
CHAPTER 42 – NATURAL JUDGE
Significance
The aim of the natural judge principle is the protection of the individual from the tyrannies of power. Similar to the principle of precedence of criminal law – “there is no crime without a previous law that defines it, nor punishment without prior legal commission” -, that of the natural judge aims at protecting the citizen. Just as there is no crime without a previous law, there can be no proceedings before a judging body, without it being regularly invested with jurisdictional powers before the fact attributed to the accused.
The exceptional courts, known from the historical phases of the seizure of power, are repudiated by the principle of the natural judge.
The constitutional protection of the natural judge is found in two items: in items XXXVII and LIII of article 5 of the CF. He says that there will be no judgment or court of exception. It states that “no one will be prosecuted or sentenced except by the competent authority”. There is also the Pact of San José, Costa Rica, enacted by Decree n. 678/1992, which in Article 8, n.1 prescribes: “Every person shall have the right to be heard, with due guarantees and within a reasonable time, by a competent, independent and impartial judge or tribunal, previously established by law, in the investigation of any criminal accusation made against it, or in the determination of its rights and obligations of a civil, labor, fiscal or any other nature”. As can be seen from reading these regulations,
CHAPTER 43 – ADVERTISING
the secret process
A state’s penal repressive system can operate either secretly or publicly.
In the canonical inquisitive process, the generally adopted form was the secret of the acts of the procedure.
The secret form consists of: (1) only the judge has access to the proceedings; (2) the procedural acts are carried out with the presence only of the judge and the person being questioned (the investigated person, the witness…).
Beccaria
A voice that rose against the tyranny of secret trials and that reached the ears of the people was that of Cesare Bonesana, Marquis of Beccaria, when he proclaimed: “Let the trials be public; so may the evidence of the crime…” (BECCARIA, Cesare. opus cit. p. 50).
In one or another passage of his work “Dos delictos e das Penas” he explained the reasons why he abhorred secret accusations: “they are a manifest abuse, but consecrated and made necessary in several governments, due to the weakness of their constitution. Such usage makes men false and perfidious. He who suspects an informer in his fellow citizen immediately sees him as an enemy. Then, their own feelings tend to be masked; and the habit of hiding them from others causes them to be concealed from themselves soon” (BECCARIA, Cesare. opus cit. p. 55).
Reasons and advantages of the principle
The principle adopted by our legal system is that of publicity. The reason for the adoption is not, precisely, in the existence of public interest in determining the real bond that unites the State to the citizen. There are more historical, political and justice reasons than technical reasons that underlie it.
Indeed, there are several advantages that publicity has over secrecy:
1st – with publicity, the judge cannot be arbitrary, his activity and his decisions will always be monitored by the attention of public opinion;
2nd – the contact of the judge and his decisions with the public will make him increasingly aware of his responsibility and importance in the social context, thus encouraging him to improve himself;
3rd – this same contact prevents the judge from becoming a cold and dogmatic interpreter of legal texts, absolutely alienated from the social needs on which his decisions will produce effects;
4th – publicity represents an excellent brake against false accusations, because, as Beccaria questions, “who can defend himself against slander, when this is armed with the most solid shield of tyranny: secrecy?” (BECCARIA, Cesare. opus cit. p. 56);
5th – publicity gives greater security to the testimony, as the author of this will fear the denunciation of the people if he testifies falsely;
6th – public inspection of the defender’s activity provides greater assurance of its efficiency;
7th – only public justice can make sure that the clam is delivered to the ground. The secret is always mysterious, the mysterious is always mistrustful. Luchini’s words are borrowed: truth and justice cannot be separated and have secrets; justice requires light, so that in the agreement of the judge the conscience of society is reflected and vice versa; Otherwise, when the procedure unfolds in mystery, suspicion and discretion penetrate and dominate ( apud MARICONDE, Alfredo Vélez. opus cit., V.II, p. 87).
Distortion of principle
It must be warned, however, that publicity is an individual guarantee enacted for the benefit of the accused; never, to your detriment. Distortions in publicity, which lead to sensationalist disclosures, must be avoided, as it results in damage not only to justice but also to the accused who, in addition to having their privacy violated, suffers an accessory penalty not provided for by law even before, many times, let your guilt be decided.
wide and narrow
As we said, the principle of publicity prevails among us. This publicity is sometimes broad (popular publicity) and sometimes restricted to the parties.
As a rule, advertising, in the process, is popular. The interrogation hearings, questioning of witnesses, debates, are acts carried out with the doors open for access by any person of the people. Exceptionally, when it comes to the trial of minors, or when, in any case, the presence of the public is inconvenient for the order, the judge may determine that these acts be carried out behind closed doors, with the presence only of the parties, their representatives and the auxiliaries of justice.
As for the case records, the principle is applied restrictively. Strangers do not have access to them. The accused, represented by his lawyer, can examine the records and even have a look at them outside the registry office. Incidentally, lawyers may have a view of any process, even without a power of attorney, as long as it is not subject to judicial secrecy. The matter is regulated by Law 8.906/94 (Statute of the Brazilian Bar Association), in Article 7. (items XIII, XIV, XV and XVI) which provides that the lawyer has the right to:
XIII – examine, in any body of the Judiciary and Legislative Powers, or of the Public Administration in general, records of proceedings that have ended or are in progress, even without a power of attorney, when they are not subject to secrecy, ensuring that copies are obtained, with the possibility of taking notes;
XIV – examine, in any institution responsible for conducting an investigation, even without a power of attorney, records of flagrante delicto and investigations of any nature, completed or in progress, even if concluded by the authority, being able to copy parts and take notes, in physical or digital media;
XV – have a view of judicial or administrative proceedings of any nature, at a notary’s office or at the competent department, or withdraw them within the legal deadlines;
XVI – remove records of completed proceedings, even without a power of attorney, for a period of ten days ;
CHAPTER 44 – JUDICIAL BINDING TO THE ORDER OR PRINCIPLE OF CORRELATION
quick considerations
This principle means that, when deciding, the magistrate is bound to the factual hypothesis contained in the accusation. If the hypothesis object of the accusation is theft, the magistrate cannot issue a condemnatory sentence for homicide.
It is not the classification of the fact in the accusatory opening that establishes the contours of the decision, but the fact narrated therein.
The magistrate, without modifying the description of the fact contained in the complaint, may condemn the accused by a criminal provision other than that imputed to the accused in the initial accusation, even if he has to apply a more serious penalty. It is that the accused, in criminal proceedings, defends himself against facts and not devices. These are the rules “jura novit curia” (the judge takes care of the law) and “narra mihi factum dabo tibi jus” (tell me the facts and I will give you the law). In this case, the “amendatio libelli” is verified, which is a correction of the accusation and not an alteration (“mutatio libelli”).
If, as a result of the collection of evidence, it is possible to give a new legal definition to the fact imputed to the accused, the complaint must be amended. In view of the principle of correlation, there can be no condemnation for a fact not described in the complaint. Violation of this principle implies nullity of the sentence. In this case, there is no simple “amendatio libelli”, which is a correction of the accusation, a hypothesis dealt with in article 383 of the CPP, but rather an amendment (“mutatio libelli”).
CHAPTER 45 – FAVOR LIBERTATIS AND FAVOR KING
quick considerations
The principles of favor libertatis and favor rei are usually understood as synonyms. Leone distinguishes them (LEONE, Giovanni – opus cit., v. I, p. 188.). For the Italian treatise, favor libertatis must be understood as a principle by virtue of which all procedural instruments must tend towards the rapid restitution of the freedom of the accused who is deprived of it, when the conditions that legitimize the state of deprivation of liberty come to be lacking. . As for the king’s favor, defines it as the principle by virtue of which all procedural instruments must tend towards the declaration of certainty of the accused’s non-responsibility; it concerns not the state of personal freedom, but the declaration of certainty of a position of merit in relation to the news of the crime.
Video
Flavio Meirelles Medeiros: The presumption of innocence does not end at the second instance .
CHAPTER 46 – ORALITY
quick considerations
The main advantage of orality over writing is speed. The principle of orality was intensified with the arrival of the electronic process and the video recording of hearings and judgments. In the past, orality was impaired because there was no record of procedural acts performed orally. Today, with new technology, it is. With the current recorded orality system , in addition to speed, there is another advantage of orality over writing: it is the reliability of the record, since in the writing system what was said orally did not always coincide with what was written in the minutes .
CHAPTER 47 – CONCENTRATION
quick considerations
The principle of concentration, according to Chiovenda, means “gathering all the procedural activities intended for the instruction and progress of the case (evidence and discussion of the evidence) in a single hearing or in a few contiguous hearings” (CHIOVENDA, Giuseppe. opus cit . v . I, p. 52). Its objective, says Alsina, is “to speed up the process, eliminating procedures that are not essential, thereby obtaining a more concrete view of the dispute at the same time” (ALSINA, Hugo. opus cit. p. 267 ) .
It is especially in the plenary of the jury that the content of the principle of concentration is expressed. From the beginning to the end of the trial in plenary, a series of acts follow one another without postponing the decision. Among us, unlike what happens in other countries, the activity in plenary cannot be suspended by removing the jurors to their homes to return the next day. The trial cannot be interrupted (only a suspension for a reasonable period of time for rest or meals is allowed) and a series of acts are carried out: the drawing of lots for the seven jurors who will serve on the sentencing council, the interrogation of the accused, the cross-examination of witnesses, oral debates, the trial itself (which takes place in a secret room) and the publication of the sentence. In oral reading, by the President of the Court.
CHAPTER 48 – ECONOMY OR SPEED
Meaning and justification
The principle of economy in criminal procedure means granting justice in the least costly way for public coffers and in the fastest way. The principle, however, cannot be taken to extremes, to subtract procedural rights from the parties. Unlike the other principles dealt with, that of celerity derives neither from the significance of the process as a guarantee nor from the unavailability of the substantial legal relationship regulated by criminal law. Its justification should be investigated in the principles that inspire public administrative policy.
Consequences
Below are some of the effects produced by the principle in criminal proceedings:
– possibility of judging more than one accused and more than one factual hypothesis in a single process;
– concentration of acts in the hearings;
– possibility of extinguishing the process before the final sentence;
– nullity is not declared if the act otherwise reaches its end;
– the nullity of an act does not extend to those who do not depend on it;
– the fungibility of resources;
– the validity of non-decision-making acts performed by an incompetent judge;
– the impossibility of the party arguing the nullity, having no interest in its declaration;
– the impossibility of arguing the nullity by the person who caused it;
– the sanity of some nullities;
– the deadlines for claiming relative nullities.
Criminal justice and speed
Certain crimes, without a doubt, due to the seriousness and consequences they generate in the affected social environment, require brevity of the jurisdictional provision; others, of lesser severity, there is no such requirement. We affirm, and with all certainty, that a certain delay in the criminal prosecution of these less serious crimes is not a bad thing. The procedural activity exerts on the accused the same psychological effect of inhibiting the criminal conduct that is aimed by the penalty in the abstract, but in a much more intense way. The longer the process takes, the more time the accused will be given to socially readjust. Nothing is more educational than the agonizing wait for the process. Uncertainty as to the final outcome of the process (as to the sentence), puts the accused in a constant state of alert in social life, which often
These are the reasons why it is concluded that, while in civil proceedings the principle of procedural economy means cheap and quick justice , in criminal proceedings the content of the principle is reduced to justice that is not costly for public coffers. The need for haste in criminal justice is contingent, not a rule. The rapid criminal procedure can be harmful not only for the defense but also for the prosecution, as it favors the emergence of conditions that can lead to the non-observance of legal formalities that protect the rights of the parties.
CHAPTER 49 – ACCUSATORY PRINCIPLE
notions
The accusatory principle is constitutional. It is instituted by article 129, item I, of the CF , according to which, it is the institutional function of the Public Prosecutor’s Office to privately promote public criminal action.
Promoting means proposing and moving forward with action. It has the sense, mainly, of taking charge of making the requests that it deems necessary to prove the fact described in the opening document of the process. It is the Public Prosecutor’s Office who must propose the steps, as it is who must privately promote the criminal action.
One of the characteristics of the accusatory principle is to subtract from the judge the burden of searching for the real truth and transfer it to the prosecution.
CHAPTER 50 – PRESUMPTION OF INNOCENCE
The beginning
According to Leone, the principle of presumption of innocence was embraced by liberal legal thought and originated in the historic XIII Declaration of the Rights of Man and Citizen, when it stated: “Every man must be presumed innocent until he is found guilty…” (LEONE, Giovanni. opus cit., v. I, p. 464).
Na doutrina, Carrara was one of two who stood out in defense of the principle: There is in favor of the accused the presumption of innocence that assists every citizen; and this presumption is assumed by criminal science, which makes it its flag to oppose the accuser and the inquisitor, not in order to stop their movement in their legitimate course, but in order to restrict their ways, chaining them to a series of precepts that are a brake on discretion, an obstacle to error and, consequently, protection of the citizen” ( apud MARICONDE, Alfredo Vélez. opus cit., V.II, p. 21).
Couture followed this same understanding: “The facts are not many, but only one: the defendant is disturbed in his peace by the litigation. The right of petition is not harmless in its form of legal action. On the contrary, it is deeply disturbing the opponent’s peace of mind. The whole secret of this problem consists, then, in that the law has no alternative but to consider this opponent as innocent, until the day of the sentence” (COUTURE, Eduardo. opus cit., 1951 , p. 41).
Garofalo
The first criticisms of this doctrine, which Mariconde now calls a classic conception , came from Garófalo: “I believe that the principle weakens the procedural action of the State, because it constitutes an obstacle to making effective resolutions that go against the accused, especially in terms of detention preventive, favoring the freedom of the accused, even when it could constitute a common danger and a provocation to the victim of the crime, even when the guilt was evident by confession or flagrante delicto”. And then he concludes: “in the process, the accused must not be presumed innocent or guilty. It is what it is: imputed…” ( apud MARICONDE, Alfredo Vélez. opus cit., V.II, p. 23).
Water
Manzini, following Garófalo, severely criticized the doctrine of the presumption of innocence:If the criterion that criminal procedure rules are essentially aimed at the protection of innocence is erroneous, even more inaccurate is the opinion that in criminal proceedings a presumption of innocence is valid in favor of the accused, for which that same accused must be considered innocent while the irrevocable sentence of condemnation has not been mediated. Nothing more grossly paradoxical and irrational. Just think of preventive custody cases; in the secrecy of the investigation and in the very fact of the imputation. Since the latter presupposes sufficient evidence of delinquency, it should at least constitute a presumption of guilt. How then to admit that it is equivalent, instead, to the opposite, that is, to a presumption of innocence?…” ( apud MARICONDE, Alfredo Vélez.opus cit., V.II, p. 25).
The replica of Mariconde
In his reply to the criticisms made by Garófalo, Manzini, Mortara, Aloisi, Carrara, to the principle of the presumption of innocence, Mariconde ends up concluding that the principle does not enshrine a presumption, but a legal status of the accused, who is innocent as long as he is not declared guilty by a sentence. Mariconde also says that this conception does not preclude the existence of a presumption of guilt capable of justifying preventive coercive measures during the process.
Guilt and its meanings
What seems to be happening in this theme is a great confusion of concepts. Thus, before presenting our conclusions, we will fix the meanings of presumption and innocence.
According to Aurélio Buarque de Holanda, presumption is an opinion or judgment based on appearances. It is supposition, suspicion, conjecture. In its most legal sense, it is the conclusion drawn from a known fact in order to accept another unknown fact as true.
Guilt can be understood in three senses, all legal.
In criminal doctrine , guilt is one of the elements (the others are anti-juridicity and typicality of the conduct) that must be present for the configuration of the crime and is composed of the psychological nexus (intent or fault stricto sensu ), the imputability and the enforceability of another conduct .
In a much broader sense and of a substantial criminal nature , guilt is the legal relationship of criminal law that unites the State, holding the right to punish, to a specific criminal, who has the obligation to submit to the penalty. The expression innocence , with this same criminal substantial nature, is that other legal relationship regulated by criminal law, in which the citizen is an active subject with the right to freedom, with the State having the duty to ensure it. In other words, whoever actually committed a crime is guilty – a typical fact (provided for and described in criminal law), unlawful (contrary to the law) and culpable (presence of potential awareness of unlawfulness, imputability and enforceability of another conduct). He is innocent, under a substantial criminal aspect, who has not committed a crime.
In the procedural sense , whoever has been declared guilty by a conviction is guilty. The condemnatory sentence is declaratory of substantial criminal guilt and constitutive of the criminal procedure. In these terms, there is the legal status or legal situation of procedural innocence , while there is no conviction. In this procedural sense, innocence does not exist in the process as a presumption. Procedural innocence, while there is no sentence, is not admitted as true nor is it an unknown fact (see the concept of presumption enunciated above); it is true and it is a known fact. Under the procedural aspect, there is no judgment of innocence, presumption of innocence, established truthof innocence, what exists is the legal status or procedural legal situation of innocence.
In the criminal substantial meaning, innocence and guilt are eventualities. There are processes in which the accused has committed a crime, is guilty; others in which he is innocent, he has not committed a crime.
What is presumption of innocence
Fernando da Costa Tourinho Filho asks: “Is there a presumption of innocence or guilt? The subject is quite controversial. Therefore, as long as there is no final judgment, he will not have been guilty. (…) Flavio Medeiros, after studying the matter, concludes: “there is, as a rule, no presumption of substantial innocence, since the presumption, if any, may, depending on the evidence, be of guilt or innocence. There is no legal presumption of procedural innocence: as long as there is no conviction, the accused is innocent’” (Provisional Prison – Revista de Informação Legislativa, n. 122, pages 89).
Tourinho Filho cites the opinion we had at the time of the first edition of this Brief General Theory of the Process. We changed.
When referring to the presumption of innocence of the accused in criminal proceedings, the expression “presumption” is used in the usual, common sense.
Presumption is hypothesis, suspicion, estimation, prognosis, supposition. Assumption is the synonym that, it seems, best expresses the meaning we are dealing with.
Well then. Presumption of innocence is a normative demand on the judge’s psyche to assume that the accused is innocent, which is why he must evaluate the evidence and interpret the law in his favor. This is the concept of presumption of innocence.
It is a normative requirement because its provision stems from the Federal Constitution. It is a normative requirement of the psyche, because presumption is supposition, a psychic phenomenon. What is required is a psychic predisposition, a judgment, not a behavior.
Children of the presumption of innocence
https://www.youtube.com/embed/kjL6R0FXV3s?feature=oembed
The presumption of innocence has two children. A talkative, extroverted, and that’s why he’s more prestigious. It regulates the evaluation of evidence, it is the “in dubio pro reo” principle. Another, discreet, little known, very misunderstood (confused with his brother), but of vital importance, and which acts on the interpretation of norms, the principle of the “king’s favor”. According to the Italian author Giovanni Leone, the king’s favor “is the principle by virtue of which all procedural instruments must tend towards the declaration of certainty of the accused’s non-responsibility” (LEONE, Giovanni. Treaty de derecho penal procedural law. Buenos Aires, Legal Europe-America, 1963, v. I, p. 188). It is that the criminal procedural system, the procedural order, the criminal procedure, all of it, is an order of guarantee of freedom and, by logical consequence, and also by derivation of constitutional commands, with two, three, or more possible interpretations, the judge must choose the rule that is most favorable to the accused.
Precautions do not remove the presumption of innocence
In order to impose arrest in flagrante delicto, temporary arrest and preventive detention, any of them, it is not necessary to prove that the indicted/accused has committed a crime, understood as a typical, illicit and culpable fact. The criminal flagrance is nothing more than a photograph of typicality, just one of the elements of the crime. Pretrial detention only requires proof of materiality and sufficient evidence of authorship. The temp is satisfied with even less. For her, any evidence admitted in criminal law of authorship or participation in certain crimes is sufficient. More topics on the presumption of innocence can be found in our comments on Article 283 of our Commented CPP .
eedom and, by logical consequence, and also by derivation of constitutional commands, with two, three, or more possible interpretations, the judge must choose the rule that is most favorable to the accused.
Precautions do not remove the presumption of innocence
In order to impose arrest in flagrante delicto, temporary arrest and preventive detention, any of them, it is not necessary to prove that the indicted/accused has committed a crime, understood as a typical, illicit and culpable fact. The criminal flagrance is nothing more than a photograph of typicality, just one of the elements of the crime. Pretrial detention only requires proof of materiality and sufficient evidence of authorship. The temp is satisfied with even less. For her, any evidence admitted in criminal law of authorship or participation in certain crimes is sufficient. More topics on the presumption of innocence can be found in our comments on Article 283 of our Commented CPP .
