Uma leitura constitucional do direito processual penal frente à política criminal expansionista: a necessária implementação de um (verdadeiro) sistema acusatório

Abstract

In an analysis of the systematic Brazilian criminal procedure one realizes that, although much of doctrine does not admit that, we still keep inserted in an inquisitorial model. The Code of Criminal Procedure (from 1940) and the design of the new one admit a probatory production in the hands of the magistrate, which constitutes the very essence of an inquisitorial system. Besides, also grounded in the pursuit of truth, our process allows the "free evaluation of evidence" and "free conviction motivated" as well as plea bargaining, all liable to criticism and incompatible with the accusatory principle. Therefore, the need to implement a system truly accusatory shows itself pressing. This system has an entire historic construction, which deserves to be checked in order to point out that its effectiveness stems from the own evolution of the criminal proceedings. Also, checking the situation of a criminal expansionist policy also appears important, what makes this work pervades the Risk Society, by the perception of a sense of social insecurity, the influence of media, globalization, the "crimes of the powerless" and by the symbolic Criminal Law. All this makes you realize that the need for urgency encrusted in this criminal expansionist policy also reaches the criminal process, which receives demands for celerity and search for a condemnatory result. These aspects ultimately tarnish the possibility of an accusatory system and end up admitting an inquisitorial method (after all, it is convenient to a judge who seeks the proof of office). These defects must be opposed through a constitutional criminal procedure, taking into account the paradigmatic rupture operated by Juridical Hermeneutics.