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Police inquiry and the accusatory criminal procedure in light of the constitutional principles

Grant number: 14/26858-4
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): June 01, 2015
Effective date (End): January 31, 2016
Field of knowledge:Applied Social Sciences - Law
Principal Investigator:Marisa Helena D'Arbo Alves de Freitas
Grantee:Bruna Martins Federici
Home Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

This paper analyzes the use of information obtained through the police inquiry in the formation of judge's conviction at the time of the procedural sentence. Currently, by what is provided in the Criminal Procedure Code in its 155 rule, judges will make their conviction through the free assessment of evidence produced in court contradictory and will not be able to base their decision solely on the information collected in the police investigation, except for precautionary evidence, anticipated and not repeatable, cases in which they could alone justify the conviction. This legislation possibility is contrary to the constitutional principles of the contradictory and full defense inserted into our Constitution in name of defending the accusatory procedural system, which aims to protect the rights and guarantees of the individual against the judging of the State. This is because the police inquiry is a procedure of administrative nature that focuses on research and does not observe the same constitutional principles of the criminal process, especially regarding the production of evidence. Given the contradiction mentioned here, it is necessary to analyse the current jurisprudence to identify the interpretation of the Judiciary about the option given by the legislature in cases that allows the use of police investigation elements in criminal proceedings. It should also be studied the draft of the New Code of Criminal Procedure to identify the current directions that have been proposed by the legislature in order to suit procedural law into the constitutional rules and principles.