Colaboração premiada: análise da (in)constitucionalidade do art. 4º, § 14, da Lei n.º 12.850/13, à luz do direito ao silêncio

• Autor(a) principal: Marcos, Patrick Extoshates
• Data de Publicação: 2019
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/5951
• topic: Colaboração premiada; Direito ao silêncio; Constitucionalidade

The main objective of the research is to analyze art. 4, § 14, of Law n. 12.850 / 13 and verify that its normative statement reveals unconstitutionality for offending the characteristic of the inalienability of the fundamental right to silence provided for in art. 5, LXIII, of the Constitution of the Federative Republic of Brazil. In the present research, the method of deductive approach was used. As far as the level is concerned, the work is exploratory, using the qualitative approach and adopting the documental and bibliographic data collection procedures. The results indicate that there is no consensus in the doctrine of the mother country about the subject. On the one hand, there are the writers who defend the material unconstitutionality of § 14 of art. 4 of Law no. 12.850 / 13, to the argument that the aforementioned provision hurts the characteristic of the inalienability of the right to silence, since it would not be possible for the employee to relinquish this right. On the other hand, there is a doctrinal current that defends the constitutionality of the norm mentioned elsewhere, asserting that, although the legislator did not use the best technique in the writing of the normative statement, it is not necessary to speak in unconstitutionality, since it is intrinsic to the in this case, it is not a question of renunciation, but rather a non-exercise of the right to silence. Moreover, the employee's position in not exercising this right would be adopted in the presence of his lawyer, thus protecting the discretionary nature of the award-winning collaboration and the rights of the collaborator. Finally, the writers affiliated to this thesis reinforce the argument of the constitutionality of the device in analysis when affirming that it is possible the judgment of retraction on the part of the collaborator, hypothesis in which the self-incriminating evidence produced through the collaboration can not be used exclusively against the collaborator who portrayed himself. Regarding the position of the courts on the subject, there is no judicial decision with general repercussions. However, it is possible to identify that there is a movement of state organs in the direction of the constitutionality of § 14 of art. 4 of Law no. 12.850 / 13, according to the opinions rendered in the Direct Action of Unconstitutionality No. 5,567 / DF, as well as the monocratic decision given in Petition No. 5,952 / DF. In view of this, it is concluded that the topic is not pacific in the homeland doctrine and there is no jurisdictional definition about the constitutionality of § 14 of art. 4 of Law no. 12.850 / 13, pending the decision of the Federal Supreme Court to be rendered in said constitutional action.