Produção probatória defensiva: a possibilidade de exercício da investigação criminal defensiva e a sua repercussão no campo da avaliação de standards no Processo Penal

Abstract

The thesis seeks to analyze the structure of the Brazilian criminal procedure in order to understand the probative initiative of the parties and to reconcile the parity of weapons that must permeate the procedural relationship with the investigative activity performed in the preprocedural phase. Despite the guarantee of the defense and contradictory in the criminal investigation phase, the precariousness of these procedural elements does not ensure a criminal prosecution of full guarantees. Whether by the time factor or the probationary aptitude, it can be seen that the judicial police organs, administrative sanctioning bodies and the Public Prosecutor's Office have much more advanced structure than the defendant and his defender. At the same time, in view of the necessary interdisciplinarity between the branches of procedural law, it is also intended to verify the discipline of civil procedure in matter of distribution of evidentiary burden and in the existence of extrajudicial evidentiary procedures, especially from the point of view of its utility for the jurisdictional quality rendering. In view of the Brazilian normative reality, it is sought to investigate in foreign law how legal systems deal with defensive intervention in the investigative phase, advancing in the Italian and North American realities. From this point of view of comparative law, the legal assistance systems of the two countries will also be analyzed, especially to determine the extent to which unfortunate citizens enjoy access to defensive research, considering that Italy and the United States adopt the judicare system for the provision of assistance to the accused, as opposed to the salaried staff of professionals adopted by the Constitution of the Federative Republic of Brazil. The research developed will also take into consideration the legal regime of lawyers and members of the Public Defender's Office and to what extent they can act proactively in the investigative phase. It is essential to define what investigative acts are covered by the legal system and which acts would depend on legislative change.