Name: CARLOS HENRIQUE MENEGHEL DE ALMEIDA
Publication date: 11/04/2022
Examining board:
Name |
Role |
|---|---|
| BRUNELA VIEIRA DE VINCENZI | Internal Examiner * |
Summary: Criminal execution is full of operations that refer to the
characteristics of the inquisitorial program pointed out by criminal
procedure scholars. On the other hand, it is established that the Federal
Constitution adopted the accusatorial program, remaining in doubt how it is
possible that, despite such a constitutional option, there is a reproduction
of the inquisitorial program in criminal execution. As accusatory and
inquisitorial are usually called procedural systems, the delimitation of the
concept of system is crucial. According to Niklas Luhmann`s Theory of social
systems, systemic unity is obtained by constantly differentiating the system
from the environment, through its own binary code and its validity programs.
Thus, the procedural systems would not be properly systems, but
decision programs of the procedural legal system. The objective is to analyze
the criminal procedural \\\\\\\\\\\\\\\"systems\\\\\\\\\\\\\\\" from the perspective of Niklas Luhmann`s
Theory of social systems and its application to the Brazilian criminal
execution procedure, exploring and demonstrating some of the communications that lead to the reproduction of the inquisitorial program. For the Luhmannian theory, the Courts assume a central position in the law system, because through the judicial decision the law system delimits its borders and reaffirms its code. Therefore, explanatory bibliographic research was carried out, analyzing the decisions of the Superior Courts that demonstrate the reproduction of the inquisitorial program in criminal execution procedure. The inquisitorial program is characterized by the denial of the principles that guarantee judicial impartiality, namely, jurisdiction, accusatory,
presumption of innocence and adversarial. Superior Courts routinely validate
the reproduction of the inquisitorial program in criminal execution
procedure.
