Justiça Negocial: uma análise dos mecanismos de consenso no Processo Penal brasileiro à luz da Constituição da República e das críticas propostas pela doutrina de Luigi Ferrajoli

• Autor(a) principal: Pereira, Camila Bonafini
• Data de Publicação: 2024
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/41240
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Garantismo Penal; Direitos fundamentais; Justiça Penal Negocial; Princípio da proporcionalidade; Constitucionalidade; Criminal Guarantee; Fundamental rights; Negotiable Criminal Justice; Principle of proportionality; Constitutionality

The present work analyses the proportionality between the Legal Garantism Theory, developed by Luigi Ferrajoli, and the fundamental rights protected by it, regarding criminal agreements. To this end, the constitutional criminal process is analyzed as an instrument of justice effectiveness and concretization of fundamental rights. It is noteworthy that fundamental rights represent more than limits to state intervention, and it is imperative to study them, also, as imperatives of State protection, in such a way that Public Power violates fundamental rights, when it intervenes excessively in citizen’s life and also when it insufficiently protects these rights. In this scenario, the constitutional provision for criminalization warrants is evident, as an instrument for the protection of fundamental rights. At this point, it is worth noting that, over the decades, globalization has led to many changes, so that contemporary society is called a risk society, which has led to the irrational hypertrophy of criminal law. This expansion of criminalization associated with the development of organized crime and street crime has led to the overload of justice systems and, consequently, discredit, due to the slowness of criminal resolution. In this context, there was the rise of alternative means of conflict resolution, with emphasis on consensus mechanisms in criminal matters, as a means to achieve an efficient criminal process, according to a study of Comparative Law, based on the experiences of France, Italy, Germany and the United States. However, Negotiable Criminal Justice is the subject of strong criticism from Luigi Ferrajoli, father of the Legal Garantism Theory, who maintains the conclusion that criminal agreements are incompatible with a guarantee system. In view of this, an analysis of the process axioms is carried out, based on the Legal Garantism Theory, and, subsequently, a proportionality judgment is made, demonstrating that criminal agreements do not represent violations of fundamental rights, from the perspective of prohibition to state intervention. Finally, the proportionality check is carried out, under the aspect of prohibiting insufficient protection by parts of the State, comparing the instruments of criminal consensus and the protection of fundamental rights, especially those subject to criminalization warrants and cases in which the crime protects diffuse and collective legal assets, demonstrating the insufficiency of concluding agreements