Investigação criminal defensiva: direito fundamental à produção da prova na persecução penal

Abstract

This dissertation addresses the topic of defensive criminal investigation, which is a fundamental right at the disposal of the technical defense for the production of evidence by its own authority in the course of criminal prosecution for a model of fair criminal procedure. From this premise, for the contextualization of the theme, the research uses the theoretical support of the Criminal Guarantee Theory which supports, among its axioms, the right to proof and to the contradictory, which constitute fundamental rights of the accused, which are the goals of defensive criminal investigation. The study proceeds with the purpose of extracting the principle of parity of arms in criminal proceedings from the principle of contradictory, from article 5, §2 of the Federal Constitution, which is a norm of a constitutional opening clause. The work focuses on the contradictory and the broad defense in the police investigation, with the proposals of contrary and favorable authors, in a doctrinal analysis and future perspectives. On the other hand, there is a current that supports the deferred contradictory in the first phase of criminal prosecution. A dogmatic, theoretical and practical overview of evidence in criminal proceedings is presented to bring to the debate the purpose and validity of evidence for defensive criminal investigation. Therefore, it is important to bring up the chain of custody of evidence and its consequences in the police investigation, as a fundamental right to lawful evidence. In this line of reasoning, it is relevant to establish the validity of the evidence produced directly by the defense, given that the production of evidence is closely related to criminal prosecution systems. In addition, it makes brief notes about the North American and Italian legal systems on defensive criminal investigation. The research exposes criticisms of the expansive and punitive criminal policy of criminal law that have suppressed constitutional and criminal procedural guarantees of the accused to give the false impression of celerity and efficiency, as a response of the criminal prosecution system, which degenerates the basic principles of criminal law. modern. The research methodology used in the study is the bibliographic and documental that are dedicated to the themes dealt with in the dissertation. The study presents the limiting aspects and possibilities for carrying out the defensive criminal investigation and its effects on persecutio criminis, as well as presenting doctrinal criticisms of the validity of the evidence produced directly by the defense. In this perspective, the objective of the research is to demonstrate that legislative changes are necessary in the legal system for the effectiveness of the defensive criminal investigation, as a criminal policy measure, with the purpose of being an essential tool for the right of defense, which will guarantee the right to fundamental test in equality of production and parity of arms.