1. Introdução ao Processo Penal

Summary

Professor Daniela Borges discusses the fundamental aspects of criminal procedure, emphasizing the distinction between process and procedure. She explains that the process is an instrument for applying criminal law, while the procedure refers to the series of acts that advance the process. The lecture also covers the state’s role in criminal law, the importance of protecting the accused’s right to freedom, and the differences between inquisitorial, accusatory, and mixed procedural systems. Professor Borges highlights Brazil’s adoption of the accusatory system, stressing the adversarial nature of the process and the accused's right to defense.

Takeaways

• 😀 The criminal procedure is essential for applying criminal law and verifying if someone has committed a crime.
• 😀 The 'process' is the whole instrument used to apply criminal law, while 'procedure' refers to the sequence of acts within that process.
• 😀 A complaint initiates the criminal process, marking the first act in the procedure.
• 😀 The purpose of the criminal process is to verify if a crime has occurred and ensure the accused’s right to defense and freedom are respected.
• 😀 The state holds the power to apply criminal sanctions, but it must respect the accused's right to freedom and follow due process.
• 😀 The criminal process aims to balance the state's duty to punish with the accused's right to defend themselves and maintain their freedom.
• 😀 In the inquisitorial system, the accused cannot defend themselves or challenge evidence, making it less fair for the accused.
• 😀 The accusatory system allows both parties to present evidence, and the accused has the right to a broad defense, which is the system used in Brazilian law.
• 😀 The mixed system combines elements of the accusatory and inquisitorial systems, but Brazil officially follows the accusatory system.
• 😀 The police investigation, while important, is separate from the criminal process, and it does not determine the procedural system used in the criminal process.
• 😀 The Brazilian legal system adopts an accusatory procedural system, where the criminal process is adversarial, and the accused has the right to full defense.

Q & A

What is the difference between 'process' and 'procedure' in criminal law?

The process is an instrument used to apply criminal law, aiming to determine if someone committed a crime. The procedure refers to the series of acts that happen in a specific sequence to give progress to the process. While the process is the whole system, the procedure involves the steps and acts that facilitate the process.

What is the purpose of the criminal process?

The criminal process is designed to verify if the accused has committed a crime. It is a procedure that the state uses to investigate and determine guilt, ensuring that the accused has the right to defend themselves and preventing arbitrary punishment.

Why is the right to defense crucial in the criminal process?

The right to defense is crucial because it ensures fairness and prevents the state from imposing punishment without respecting the rights of the accused. The defense allows the accused to challenge evidence and present their case, maintaining the balance between the state's power and the individual's freedom.

What historical context is provided regarding the development of criminal process?

Historically, during times like the Inquisition, individuals were accused, tried, and condemned by a single authority, such as the church. The criminal process was introduced to ensure the accused had a right to defend themselves, separating the power to accuse and the right to a fair trial.

What is the role of the state in the criminal process?

The state is the only entity with the authority to apply criminal sanctions. It has the power and duty to enforce the criminal law, ensuring that it is done according to the rules of the process and procedure, which protect the rights of the accused.

What are procedural systems in criminal law?

Procedural systems refer to the legal frameworks that ensure the fair treatment of the parties in a criminal case. The systems dictate how the parties, including the state and the accused, interact during the process, ensuring respect for rights and fairness.

What is the accusatory system in criminal law?

The accusatory system is a procedural model where the state and the accused have clear roles. The system allows both sides to produce evidence and offers the accused the right to a broad defense. This is the system currently adopted in Brazilian criminal law.

How does the inquisitorial system differ from the accusatory system?

The inquisitorial system is characterized by the absence of an adversarial approach. In this system, the parties do not have the opportunity to contradict evidence, and the accused may be restricted from defending themselves. It is more imbalanced compared to the accusatory system, where both parties can engage actively.

What is the mixed procedural system, and how does it relate to Brazil's legal system?

The mixed procedural system combines aspects of both the accusatory and inquisitorial systems. However, Brazil does not adopt the mixed system for criminal proceedings. While the police investigation may have inquisitorial characteristics, the criminal process in Brazil is strictly accusatory, ensuring the rights of the accused to defense and participation.

What is the role of the police investigation in the criminal process?

The police investigation serves as an initial procedure to gather information about a crime. It is not a mandatory part of the criminal process and does not involve the same rights for the accused as the criminal process itself. In Brazil, the police investigation is considered an administrative procedure, not part of the criminal process.