The Code of Criminal Procedure Brazilian Military: Ode or Requiem for the Inquisitorial System?

• Autor(a) principal: Armando, Nicanor Henrique Netto
• Data de Publicação: 2015
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista de Direito Penal, Processo Penal e Constituição
• Texto Completo: http://www.indexlaw.org/index.php/direitopenal/article/view/586
• topic: Criminal procedure;Criminal procedure;Military dichotomy;Procedural system;Inquisition regime;Accusatory; Processo penal;Processo penal militar;Dicotomia;Sistema processual;Inquisitório;Acusatório

This paper conducted a literature review aimed to identify the epistemological principles, social and political underlying the inquisitorial and adversarial procedural systems, which connect the characteristics of each of these systems, to investigate which of them matches the Criminal Procedure Code of Military (CPPM). The findings of the survey show that for a system to be characterize as libelous not just the separation of functions to accuse and judge. It is necessary to keep the separation for which the structure of dialectical process does not break, and the evidential initiative is always reserved for the parties. With regard to systems,the sticking point is the identification of its principle informer, for it is he who will determine if the system is inquisition regime or libelous, and not ancillary elements (orality, advertising, separation  of  activities).  The  process  aims  to  reconstruction  of  a  historical  fact,  the management of proof is erected the core founding or the unifying principle of a system. In this context, devices in the CPPM to give judge powers investigative denote the adoption of the principle inquisitive, who founded a system inquisition regime, because they represent a breach of equality, contradictory, the very structure of the dialectic process. Consequently, fulminam the main guarantee of urisdiction, which is the impartiality of the judge. With this, it is concluded that the CPPM is essentially inquisition regime. This study also (re)thinking the need of dichotomization of criminal proceedings Brazilian, perquirindo if the duality of legislation on criminal proceedings is consistent with a current view of the process as a constitutional  model  that  ensures  the  enforcement  of fundamental rights by bases principiológicas jointly agreed to any process.