Banca de DEFESA: MARCELO HERVAL MACÊDO RIBEIRO

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : MARCELO HERVAL MACÊDO RIBEIRO
DATE: 22/11/2022
TIME: 09:00
LOCAL: FDA
TITLE:

Negotial CRiminal Justice and Penal Garantism

KEY WORDS:

KEYWORDS: negotiated agreements; criminal guaranteeism; due process of law

PAGES: 170
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUBÁREA: Direito Público
SPECIALTY: Direito Processual Penal
SUMMARY:

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.

BANKING MEMBERS:
Presidente - 2279377 - HUGO LEONARDO RODRIGUES SANTOS
Interno(a) - 1352111 - ROSMAR ANTONNI RODRIGUES CAVALCANTI DE ALENCAR
Externo(a) à Instituição - MANUELA ABATH VALENCIA - UFPE