A assistência mútua em matéria penal e as penas vedadas no direito brasileiro

Abstract

The transnational criminality is one of the major problems of the present time and its growth is associated with the complexity in the processes of globalization. The more interconnect the economy, the culture and other means of communications of the State, more vulnerable they are to criminal actions. In face of this fact, the international community chose the International Criminal Law as one of the instruments developed to face this contemporary problem. The ICL, as a specialization of the Criminal Law, fulfills the demands of the international community because it is constituted by the binomial criminalization and repression institutions, and because it contemplates two different perspectives: that of the national observer who sees the projection of its own legal system to outside the territorial boundaries, and that of the international observer who see the projection of the international norms to the inside of the State territory. The importance of the ICL for the fight against crime is seen in a plurality of kinds of cooperation (administrative and judicial) and of methods which range from the most traditional ones, such as extradition, rogatory letters, recognition of foreign sentences, to the most modern ones, such as transfer of prisoners and mutual assistance. The most traditional methods of cooperation are proving themselves to be minimally efficient and excessively bureaucratic to achieve the expected result, specially due to the juridical barriers imposed by the States. The mutual assistance method, however, meets the international expectation because it simplifies the transaction of requests, since they are done by central authorities and not by diplomatic means, and also because it reduced the juridical barriers. The reduction in the juridical barriers happens because it is possible to mitigate the identity principle, to reduce the reasons for rejection and because it deems unnecessary to submit requests that notoriously bypass the approval of the brazilian s Superior Court of Justice. Although the mutual assistance brings various advantages in facilitating the criminal persecution, in promoting formality detachment and in diminishing the juridical barriers, it cannot result in a dismissal of material and procedural warranties of those people who are the recipient of the persecutory state action, specially with respect to the warranty that prevents one to have a forbidden punishments applied against oneself (5º art., XLVII of the CF/88). Hence, the recognition of the existence of the obligation to not-do, and, from the side of the State, the existence of the obligation to not-cooperate are necessary, so that they can be invoked to prevent cooperation acts that can contribute to the application of forbidden punishments.