Justiça criminal negocial e garantismo penal: análise crítica da importação de institutos jurídicos negociais ao processo penal brasileiro

Abstract

The main objective of this dissertation is to analyze, in the light of the theory of criminal guaranteeism, the growing phenomenon of importation consensual resolution mechanisms to the national legal system. Starting from the premise that the Constitution of the Federative Republic of 1988 prescribed a set of limiting guarantees to the application of the punitive power, conforming a falsificationist system to define the criminal deviation, described by the Italian philosopher Luigi Ferrajoli as a guaranteeist epistemology, it is intended to examine in this work the possible contradictions raised by the negotiation mechanisms that have already been positivized ― as well as by the current projects to expand the consensus’s space ―, on the one hand, and, on the other hand, by the guaranteeist system sheltered by the Constitution of the Republic. The hypothesis is that negotiation in criminal proceedings, insofar as it dispenses the fundamental guarantees that guide and legitimize the application of punitive power within an accusatory and democratic processual perspective, presents as incompatible and potentially harmful to this guaranteeist system positivized in the Brazilian legal system. To guide the development of this research, primarily documentary and bibliographic research techniques were used, using the dialectical-phenomenological and historical-comparative method, supported by extensive material already existing, including legislation, jurisprudence and varied academic productions, national and foreign, by authors who developed critical studies on the subject of analysis. At the end of the research, it was concluded that the negotiation mechanisms promote effective damages to the guarantees that structure the referred guaranteeist epistemological system, especially the guarantee of jurisdiction, by allowing the application of a penalty in the absence of a judicial process; the mandatory criminal proceedings, as such mechanisms are based on the discretion of the Prosecution; the separation between the various procedural actors, promoting serious subversions in their actions, as well as the full defense, contradictory and production of evidence, by demanding the waiver of the production of evidence on the initiative of the accused, being satisfied with the elements produced in a unilateral and inquisitive way by the criminal prosecution, eventually corroborated by the guilty of plea of the accused. In an attempt of proposing harms reduction, it was suggested the regulation of issues such as defensive investigation, greater judicial control over the factual basis of the agreements and expansion of the Public Defender's, especially in the preliminary investigation phase.