Filters in criminal proceedings | We need more filters in the criminal process
We need more filters in the criminal process
A year ago, I wrote a text proposing an increase in the freedom of action of the Delegates, so that they can stop instituting the police investigation when they are faced with a fact that, of course, deserves the application of the principle of insignificance or the incidence of some exclusion of unlawfulness.
At that time, I observed the disagreement of many colleagues as to the assignment of more powers to the Police Delegates. In fact, I realized that many defense lawyers did not like the suggestion, despite being more of an “instance” to avoid a criminal conviction.
The point is simple: in the current understanding, Delegates must initiate the inquiry and can not determine filing. Once the investigation has been initiated, it will normally be filed only if there is a request from the Public Prosecutor and the Judge agrees (which may apply the absurd art. 28 of the Code of Criminal Procedure).
Therefore, allowing Delegates to fail to initiate the investigation in some cases (insignificance and exclusion of illegality) would be a way of avoiding the submission of some people to a procedural suffering that, in the end, will result in acquittal.
Recently, I received a message from a colleague who wanted to know my opinion about the jury’s court. Briefly, I said that the jury’s proposal (judgment by the people) is very good, provided that the pronunciation decision really is a filter to bring to the jury plenary only those individuals who would be convicted by a robed Judge.
In other words, I disagree with the application of the principle of “in dubio pro societate” at the stage of pronunciation, because that decision becomes a merely formal filter, with numerous passages stating that in doubt the case should be submitted to the jury, Natural judges of intentional crimes against life.
We also note excerpts that speak about the impossibility of dismissing qualifiers in pronunciation, unless proven unfounded. That is, in the doubt, the qualifiers integrate the pronunciation and are subject of question to the jurors. The burden of proof is reversed, and the defendant must prove that the fact (motivation or form of execution) narrated in the complaint has not occurred.
More filters in the criminal process
One of the major problems in the criminal process is the lack of a filter or the existence of merely formal filters. There are several examples.
At first, the Public Prosecutor’s Office should only report when there was just cause. However, many Prosecutors denounce without a set of minimum indications of authorship and materiality, with the intention of producing evidence during the investigation.
The receipt of the complaint, as it is known, should be the moment to prove the existence of just cause. Otherwise, the complaint should be rejected (article 395, III, CPP). However, the receipt of the exculpatory accusation became only a formality of very few lines.
Similarly, upon receipt, quotation and presentation of the response to the charge, the next “filter” is virtually non-existent. It is the analysis of the hypotheses of summary acquittal. Once again, Magistrates use a few lines in turning away from summary acquittal, and then they mark the date of the hearing.
The sentence is also a filter in the first instance. Incidentally, it is the most important and awaited filter. There are, however, Judges who rarely disagree with the claim of conviction expressed by the prosecution in the closing arguments.
Finally, in the Superior Courts, the filter is weakened, considering the understanding that it is not up to the STF and the STJ to analyze factual-probatory issues (STJ summation 7).
Therefore, there are few filters separating the accused from the conviction with res judicata. In fact, some of these filters became mere formalities.
In this way, the insertion of new filters – such as the possibility that Delegates fail to initiate investigations in some cases and the definitive removal of “in dubio pro societate” in the pronouncement decision – would produce a greater and more effective control of convictions.
In addition, convictions would have more legitimacy, because they would go through the screening of more organs, which would reduce the chances of injustice and dissatisfaction.
In short, we need more filters in the criminal process. In addition, we must also assign more effective filters to the existing filters, especially by ending the use of the principle of “in dubio pro societate”, which has no constitutional provision.