A possibilidade de aplicação do mandado de busca e apreensão genérico no ordenamento jurídico brasileiro

• Autor(a) principal: Duessmann, Carla Michels
• Data de Publicação: 2018
• 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/5649
• topic: Busca e apreensão; Processo penal; Direitos fundamentais

The present study aimed to analyze the possibility of applying the generic search and seizure in the Brazilian legal system. For that, we used the exploratory research, the qualitative approach and the bibliographical data collection. Thus, the concepts related to the institutes of search and seizure were verified, in order to arrive at the understanding of the generic, or collective, search and seizure in the criminal proceedings. This is configured as one that does not give the precise indication of the house that will be carried out the diligence, but rather a street, block or locality. The application of such warrants is disputed by many thinkers of the law, because it imports in violation of fundamental rights. However, many scholars also maintain that without the use of this practice there is no success in important operations aimed at combating serious crimes, which ends up facing the right of public safety. The fundamental rights which are put at risk in the application of generic warrants, as well as in case of non-implementation, have been set out in the second chapter. Then, the relativity of fundamental rights was applied, applying the Alexy weighting technique, in order to verify among the assets protected in each fundamental right the one that seems to have the greatest weight. It was then demonstrated that the assets protected by the fundamental right of public security seem to have a greater weight, since they cover other rights such as life, physical security, social welfare, among others. Thus, it was concluded by the constitutionality of the measure. However, the practice is still not covered by infraconstitutional law, suggesting a reform in the Criminal Procedure Code, to give the opportunity to apply generic warrants, and judges to base their decisions, being the seriousness of the crime to be fought, or by the impossibility of using other means. Thus, the norm would be valid for all individuals. It was concluded, therefore, by the possibility of applying the generic search and seizure, provided that a reform in the legislation is carried out, for the practice to be covered by the constitutionality and the legality.