Cultura da oralidade como técnica de efetivação do procedimento em contraditório e superação da tradição inquisitória

• Autor(a) principal: Melo, Marcos Eugênio Vieira
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_RS
• Texto Completo: http://tede2.pucrs.br/tede2/handle/tede/8609
• topic: Processo Penal; Oralidade; Procedimento em Contraditório; Originalidade Cognitiva; Mentalidade Inquisitiva; CIENCIAS SOCIAIS APLICADAS::DIREITO

The present work seeks to develop a critical analysis of the contemporary Brazilian criminal process, fundamentally in relation to the authoritarianism present in the formation of the Brazilian society and its reflection within the criminal process, being in charge to verify if the technique of the oral process concretizes political principles procedural of the evidence, so that it can enhance the procedure in a contradictory way and serve as a model for legal actors. It is a model that is based predominantly on audiences in place of written records so that there is a greater cognitive originality of the judge, in the attempt to overcome inquisitorial models in which the probative production is produced unilaterally, without the participation of the defense and legitimized in an audience that reproduces what is already formed. After the definition of the fundamental premises of this process of legitimation, including signifiers such as "absolute truth" and "free convincing of the judge", as well as a critical view of the contradictory, will the problems of an efficiencyism based on a "new reason for the neoliberal world" within the penal system and its implications in criminal proceedings. Subsequently, it will be studied the permanence of the inquisitorial culture in Latin America and the weight of the inquisitorial mentality within the Brazilian penal process, especially in the preliminary phase, which is the main nucleus of the evidential formation, as its implications in the legitimacy admitted by the Brazilian criminal procedure, mainly through the "dirty game" of article 155 of the Brazilian Code of Criminal Procedure, contaminating the magistrate who has access to these proceedings or participates in this phase. Finally, we will analyze how a truly oral process takes place, presenting the principles inherent in a process based on orality, namely the immediacy, concentration, physical identity of the judge, publicity and contradictory. Finally, we will analyze how the overall reform of the Italian Code occurred and some lessons that can be drawn from this process, as well as the re-founding of criminal proceedings in Latin America based on orality and the structural change of institutions as a paradigm be adopted by Brazil in the future.