1ª COLOCADA NA PROVA ORAL DELEGADO PCSP - 98 PONTOS - Instagram @julianunesmachadoo

Summary

The transcript captures a detailed legal dialogue, exploring various aspects of criminal law, constitutional rights, and legal procedures. Topics covered include the definition of crimes like theft, arbitrary justice, and abuse of authority. The discussion also addresses the roles of police officers in legal processes, with emphasis on issues such as the use of technology in investigations, confidentiality, political asylum, and the limits of state power. The conversation reflects on the balance between individual rights and state authority, showcasing legal principles, the application of law, and policy considerations in practice.

Takeaways

• 😀 The agent who takes property privately to compensate a victim is not subject to theft penalties but could be charged with arbitrary exercise of one’s own reasons, reflecting a special type of conduct.
• 😀 Receiving stolen goods can still be prosecuted even if the original thief’s penalty is extinguished by prescription, as per Article 180 of the Penal Code.
• 😀 The Penal Code allows for substituting a custodial sentence with a restrictive penalty under specific conditions, such as favorable circumstances and the ability to compensate damages.
• 😀 Plurisubjective crimes involve multiple agents necessary to commit the crime, like criminal association, while plurissubsistent crimes are those that can be committed through a series of acts, such as theft.
• 😀 A police officer can’t access or tamper with a suspect's phone content without legal representation. Any evidence gathered unlawfully would be considered inadmissible in court.
• 😀 Telephone interception can provide evidence for a different crime, as long as the interception was legally authorized and the investigation was not deviated from its original purpose.
• 😀 The Law of Abuse of Authority (Law 4,898 of 1965) was designed to limit state power, especially during the military dictatorship, and falls under the first generation of human rights focusing on individual freedoms.
• 😀 Home invasion by a public servant is a crime under Article 150 of the Penal Code, and when combined with abuse of authority, there may be a formal concurrence of crimes.
• 😀 Political asylum and diplomatic asylum are distinct; territorial asylum is granted within Brazil, while diplomatic asylum is granted through Brazil’s foreign delegations. Both serve to protect individuals facing political persecution.
• 😀 Affirmative actions like quotas are intended to promote substantial equality, allowing historically discriminated groups better access to opportunities. These actions are temporary and may be judicially challenged if seen as setbacks.

Q & A

What is the legal consequence for an individual who takes someone else's property to compensate for damage caused to the victim?

In this case, the individual is not subject to theft penalties. Instead, the act is considered the arbitrary exercise of one's own reasons, meaning it's a crime related to taking justice into one's own hands, rather than a property crime.

Does the prescription of the punitive claim for a theft crime impact the liability of someone receiving stolen goods?

No, according to Article 180 of the Penal Code, the crime of receiving stolen goods remains typical and punishable even if the punishment for the original crime (theft) is extinguished due to the prescription of the claim.

What are the criteria for substituting a custodial sentence with a restrictive sentence of rights?

A restrictive penalty of rights can replace a custodial sentence if the crime is punishable by less than four years of imprisonment, the conditions are favorable for the substitution, and if it's a crime against public administration, the damages must be compensated.

What is the difference between plurisubjective and plurissubsistent crimes?

Plurisubjective crimes require the participation of two or more individuals to be classified as a crime, such as criminal association. Plurissubsistent crimes, on the other hand, are crimes where the conduct can be divided into several acts, like theft, which involves multiple acts of taking property.

What action should the police chief take when an individual is carrying a replica firearm without committing any act of threat?

Since carrying a replica firearm does not fall under any specific criminal statute and does not constitute a criminal act in itself, the police chief should release the individual without registering a criminal occurrence, as this is an atypical fact.

Can police access the content of a cell phone during an arrest in flagrante delicto?

No, police officers cannot tamper with or access the content of a cell phone during an arrest without legal representation or a judicial order. Accessing such content without permission would be considered illicit evidence.

Is it possible to use evidence discovered during a telephone interception for a crime other than the one being investigated?

Yes, it is possible to use evidence found fortuitously during a legally authorized telephone interception, provided that there is no proof of deviation from the original investigation's purpose.

What generation of human rights is the law on abuse of authority related to?

The law on abuse of authority, particularly from the military dictatorship era, is related to the first generation of human rights, which focuses on protecting individual freedoms and limiting state power, especially regarding law enforcement actions.

What is the legal object of the law on abuse of authority?

The legal object of the law on abuse of authority is to protect individuals from brutality and excesses committed by law enforcement officers, safeguarding both their physical and moral integrity.

What is the difference between political asylum and political refuge?

Political asylum is a discretionary act granted by the President of the Republic, while political refuge is a linked act, meaning that a refugee has a subjective right to refuge if they can prove political persecution in their home country.

What are positive constitutional principles and how do they limit state power?

Positive constitutional principles are principles that impose certain obligations on the state to protect individual freedoms. They limit state power by ensuring that the state's actions respect fundamental rights and liberties of individuals.