RESTRICTIONS ON THE EXERCISE OF FUNDAMENTAL RIGHTS BY THE OFFENDER IN CRIMINAL AGREEMENTS FROM THE PERSPECTIVE OF LEGAL PATERNALISM

• Autor(a) principal: Bedê Freire Junior, Américo
• Data de Publicação: 2022
• Outros Autores: Lemgruber, Letícia
• Tipo de documento: Artigo
• Idioma: por; eng
• Título da fonte: Revista Esmat
• Texto Completo: http://esmat.tjto.jus.br/publicacoes/index.php/revista_esmat/article/view/445

The article addresses the concept of legal paternalism and adopts Valdés' conception, as a state coercion on the individual's behavior, against his will, aiming to avoid a harm to him, protecting him from a self-referential behavior. It analyzes the admissibility of paternalism to restrict provisions of procedural guarantees by offenders in negotiating criminal agreements with the Public Prosecutor's Office. To this end, it addresses the offender's autonomy and the conditions under which his or her decision is made, using the lessons of Valdés, Maniaci and Sarmento as a parameter. The requirements of a rational and autonomous decision are examined, namely, the ability to discern, based on knowledge of the relevant facts, free from vices of discernment, coercive pressure, vulnerability, stable over time and without causing damage to third parties. The fundamental rights necessary to guarantee the basic competence of the offender in the exercise of his autonomy are pointed out, and the procedural guarantees that may be restricted in the negotiation are listed.