A "REFORMATIO IN PEJUS" no direito das contraordenações e os direitos de defesa do arguido

• Autor(a) principal: Antunes, Sofia DI Giovine Freire de Andrade
• Data de Publicação: 2020
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/110034
• topic: Direito das contraordenações; Proibição da reformatio in pejus; Regime geral das contraordenações; Non reformatio in pejus; Possibilidade de agravação da sanção administrativa; Direito processual penal,; Direito penal; Administrative offenses´ law; Prohibition of reformatio in pejus; General regime of administrative offenses; Possibility of the increase of the administrative sanction,; Criminal procedure; Criminal law; Direito

This dissertation focuses on the study of the prohibition of “reformatio in pejus” within the scope of administrative offenses´ law, in particular, if its withdrawal in some sectorial regimes (CVM, NRJC, LQCA and RGICSF) can violate the defendant´s rights. Currently, the Portuguese general regime of administrative offenses predicts that when the defendant impugns or appeals the administrative decision that enforces a sanction, the court can´t aggravate it. On the other hand, some sectoral regimes establish the opposite solution, that is, the court has the possibility of aggravating the sanction, when the defendant impugns or appeals the administrative decision. The first object of study focuses on an historical perspective of the development of this principle in the administrative offenses´ law, as well as in the hermeneutic analysis of legal texts. That will be fundamental for the conclusion of what is included in the concept of prohibition of “reformatio in pejus”. Simultaneously, the study will focus on the observation of doctrinal conceptions about this subject, and will be adopted a comparative approach on foreign sources and models that will be compared to the model adopted in Portugal. At this headquarters, the possible solutions that can be incorporated on our legal system will be confronted. The second object of study falls under the application of the rights and principles of criminal law to administrative offenses´ law, in particular, if the withdrawal of the prohibition of “reformatio in pejus” can violate some fundamental rights of the defendant, such as the right to appeal, the principle of contradiction, the right to equality and the proportionality principle. Finally, the study will proceed on the analysis of a decision from the Portuguese Constitutional Court that will be fundamental for the final conclusion that will be presented in this paper. Our research will be concluded with the study of an alternative model, allowing that “reformatio in pejus” can be applied when the defendant impugns the decision, but not when he appeals to the Court of second instance. Since the current solution can lead to not only an inability to distinguish the administrative and judicial procedures, but also an increase of unfounded appeals and a delay of administrative offenses’ procedures, this theoretical model will allow a conciliation between the defendant´s claims and the increase of the autonomy of administrative offenses´ law over the criminal law.