Ne bis in idem: limites jurídico-constitucionais à persecução penal

This legal research aims to demonstrate the prohibition in the Brazilian criminal system of a multiple imputation for the same fact in a simultaneous or successive way. For that it is developed a different idea of the subject. Through comparative, eletronic and bibliographical researches, the dissertation was accomplished in a way to establish the content of the foundations of the criminal procedural emphasizing as fundamental premise the values of the Constitution. In the first section it was demonstrated the limits of the theme and the objective of the research. After that, it was analyzed the basic function of the criminal suit which has the important mission of limiting state's punitive power. In the same way, the criminal procedure corresponds to a warranty of the citizens' freedom. In the same section, it is shown how it is possible to abandon the myth of the real truth in the criminal law system. In the third section of the research, there were pointed elements and definitions about the cognition object, specially the litigious object or "thema decidendum", and also the peculiarities of the judged cases. In the fourth section the subject about origins and evolution of the criminal procedure and its objectives in the legal system is developed to demonstrate its perspectives. Some aspects of the identity's concept of the presupposition of the facts are as well demonstrated in order to relate the theme to the prohibition of multiple imputation. There are also considerations about some other important aspects as the incidence of the legal rules and the possible change on the elements of the penal type. There are several comments about legal procedural in other legal systems comparing them to Brazilian's most elevated Courts. In the end it was systematized the limits to criminal imputation, emphasizing the defende's right as a foundation of the legal system. Is was registered that the ius persequendi can be exercised once

A prioridade absoluta na Constituição Federal de 1988: cognição do art. 227 como princípio-garantia dos direitos fundamentais da criança e do adolescente

The study undertakes the analysis of the constitutional warranty principle of the Absolute Priority of the children and adolescents fundamental rights concerning to the sense, reach, content, addressees and effectiveness. Then, we begin with the study of the Constitution, text where is inserted the principle on examination, opportunity on which it verifies the concept and conceptions of the Constitution, theories, functions, it normative power and the constitutional feeling. Soon after, the fundamental rights theory is analyzed, focusing your origin, importance, functions, protection, restrictions, duties, characteristics and effectiveness. Then, it is led in general to the place of the principles, moment that leans to their concept, evolution, functions, classification and characteristics. Finally, it is appreciated the principle of the Absolute Priority approaching to the meaning and reach, the normative force and importance, historical precedents, materialize rules, addressees and its normative power and enforcement

Devido processo penal: uma análise acerca dos direitos fundamentais sob a perspectiva do processo eletrônico

The current study presents an analysis about the automation of the lawsuits in Brazil, which opens a new direction to be followed by the National Secretary of Justice, applied indistinctively to the civil, criminal and labor lawsuits, as well as to the special court houses at any degree of juridisdiction. It treats, specifically, about the transition from the classic lawsuit with bureaucratic aspects to the electronic one, based on the simplicity of the functions, the quality of the oral and the readiness. The light of the constitutional principle of the reasonable duration of the lawsuit, while fundamental rigth of the defendant and, under de protection of the democratic guarantee, it investigates, from the theory of the fundamental rights to the reform movement of the lawsiut, in the scenery of the alien law and national law, the latter, mostly because it has the automation as a necessary improvement claimed by modernity, yet without forgetting of the humane character inherent to the criminal lawsuit. It faces the issue of of the disruption of the paradigm of the written formality of the Brazilian lawsuit, the problem of the resistance to the new automized method, the use of the video conference for the inquest of the witnesses as well as for the questioning of the defendant, the advancements of the virtual lawsuit on the Superior Courts, Federal Supreme Court and Superior Court of Justice, it treats also about the role of the National Council of Justice - CNJ - to uniformize the legal proceedings in the country. Without neglecting the effective respect to the fundamental rights, it focuses the cultural change necessary so that the electronic technology can be, in fact, in the indictment system, the means to reach with excellency the citizenship by the simplification of the legal proceedings, transposing the baseless bureaucracy and assuring an effective judicial service assistance in order to have a better quality of life

Análise econômica da expansão do direito penal

Aborda a evolução histórica das liberdades individuais, a partir de apontamentos pertinentes ao constitucionalismo liberal, à formação do Estado de Direito e ao advento dos regimes democráticos amparados em direitos fundamentais. Pretende, quanto aos direitos fundamentais, mostrar diversas classificações, funções, critérios e conceitos, além da sistematização de gerações ou dimensões de direitos. Discorre acerca da teoria dos limites aos limites, ao lado de teorias correlatas em profícua confrontação doutrinária, tudo com fins a estruturar os conceitos basilares de direitos de liberdade, que orientam o restante da obra. Trata do cenário histórico-jurídico do surgimento da Análise Econômica do Direito (AED), consistente, sobretudo, no jusrealismo norte-americano, abordado, em paralelo, com o realismo jurídico escandinavo. Aplica conceitos e premissas de microeconomia ao Direito Penal, com ênfase para a investigação do comportamento criminoso empreendida pela Economia do Crime. Avança não apenas restrito à perspectiva teórica, trazendo dados empíricos e implicações concretas da teoria econômica dos delitos e das penas, que serão reconhecidos na evolução e redução da criminalidade, nas políticas de desarmamento, na estruturação empresarial do narcotráfico, bem como na otimização da administração penitenciária brasileira a fim de concretizar o preconizado pela legislação de execução penal. Desenvolve estudo a partir da leitura histórica do Direito Penal, passando pelos conceitos de sociedade complexa e de riscos. Analisa, após fixados tais pressupostos, algumas causas do processo de expansão do Direito Penal com vistas a identificar propostas alternativas ao hiperpunitivismo hodierno, preservando-se, assim, os direitos de liberdade que sustentam o Estado Democrático de Direito. Propõe uma desconstrução do conceito jurídico do princípio da eficiência administrativa, demonstrando como seu conteúdo normativo foi demasiadamente mitigado pela recepção precária dos respectivos elementos econômicos por parte da doutrina e da jurisprudência pátria. Ressalta a importância jurídica da eficiência econômica, devidamente harmonizada com os demais princípios constitucionais, por força do instrumental analítico da AED Positiva. Investiga criticamente algumas teorias sociológicas tendentes ao funcionalismo penal, sob referenciais de eficiência e de direitos de liberdade. Almeja, ao final, propor a AED como alternativa à expansão funcionalista e irracional dos tipos e sanções criminais, de modo que a aproximação entre Economia do Crime, eficiência econômica e Direito Penal contribua para blindar os direitos de liberdade das vicissitudes típicas da sociedade contemporânea

Responsabilidade civil como função social na distribuição e revenda de combustível face ao direito do consumidor e ao meio ambiente

The civil liability of the distribution and retail fuel stems from the fact business activity developed to be high risk and can be said as risk inherent or latent danger that has predictability and normality characterized by placing the consumer in a position of vulnerability, such as the environment, both public policies defined and constitutional protection. Consumer protection as a fundamental right and the environment as the primacy of social order aims the welfare and social justice, as inserted right to the third dimension, are guarded by the State when it creates operational standards through public policies and indirectly intervenes in the economic order. This intervention is due to consumer protection and the environment are economic order principles, founded on free initiative and free competition, ensuring everyone a dignified existence which underlies the irradiation of fundamental rights in private initiative, before the commercial evaluation, mass consumption, the emergence of new technologies that link consumers to the environment before the protection of life, health and safety and ensuring a better quality of life for present and future generations. To repair this damage and the right to information are provided as fundamental rights that put the person at the epicenter of the relations and collective interest stands out against individual interests that to be done need public-private partnership. In such a way that the used methodology was an analysis of documents correlating them with bibliographic sources whose goals are to recognize the civil responsibility as limit to subjective right, having to develop a social function where guilt and risk grow distant and the damage is configured as a consequence of inherent risk, requiring the State interventional postures in fulfilling its public policy; prevailing in these risky activities the solidarity of those involved in the chain of production and socialization of damage forward those are provided directly of products of hazardous nature that put in a position of vulnerability the environment and the consumer

Justiça restaurativa no sistema penal e processual penal como forma de concretização do estado democrático constitucional

Diante do atual modelo penal e processual penal não atender aos reclamos das partes interessadas, gerando um descrédito na Justiça de um modo geral, surge a Justiça Restaurativa como uma alternativa para solucionar tais problemas e como elemento de concretização do Estado Democrático Constitucional. A Constituição Federal de 1988 representa o símbolo maior do processo de democratização e de constitucionalização nacional. O Princípio da Dignidade da Pessoa contida no texto constitucional consiste num dos principais fundamentos da República Federativa do Brasil, funcionando como respaldo aos direitos e garantias fundamentais do cidadão, sobretudo na seara criminal. A partir do processo de constitucionalização nacional, ocorre uma releitura das legislações infra-constitucionais, que passam a ser interpretadas de acordo com o texto constitucional. Atualmente, a conjuntura jurídico-penal pátria está associada à ideia de garantismo, ligada ao conceito de Estado Democrático Constitucional. Apresenta-se a Justiça Restaurativa como um novo modelo de Justiça Penal, mais flexível e humanizado, visando além da aplicação da pena imposta pelo Estado, superar uma situação de conflito, na busca por resultados positivos no combate e redução da criminalidade, a satisfação da vítima e a mudança da cultura de violência, compatível com as diretrizes do Estado Democrático Constitucional. A partir da análise do direito internacional e de projetos e legislações nacionais envolvendo a Justiça Restaurativa, percebe-se a eficácia das medidas restaurativas na solução de conflitos dentro do Processo Penal, além da satisfação da vítima, do infrator e de familiares na participação dos encontros restaurativos, constituindo ferramenta de satisfação da dignidade humana, dentro de uma perspectiva humanista e garantista

O direito fundamental contra a autoincriminação: a análise a partir de uma teoria do Processo Penal Constitucional

The right against self-incrimination is a fundamental right that works in the criminal prosecution, and therefore deserves a study supported by the general theory of criminal procedure. The right has a vague origin, and despite the various historical accounts only arises when there is a criminal procedure structured that aims to limit the State´s duty-power to punish. The only system of criminal procedure experienced that reconciles with seal self-incrimination is the accusatory model. The inquisitorial model is based on the construction of a truth and obtaining the confession at any cost, and is therefore incompatible with the right in study. The consecration of the right arises with the importance that fundamental rights have come to occupy in the Democratic Constitutional States. In the Brazilian experience before 1988 was only possible to recognize that self-incrimination represented a procedural burden for accused persons. Despite thorough debate in the Constituent Assembly, the right remains consecrated in a textual formula that´s closer to the implementation made by the Supreme Court of the United States, known as "Miranda warnings", than the text of the Fifth Amendment to the U.S. Constitution that established originally the right against self-incrimination with a constitutional status. However, the imprecise text does not prevent the consecration of the principle as a fundamental right in Brazilian law. The right against self-incrimination is a right that should be observed in the Criminal Procedure and relates to several of his canons, such as the the presumption of not guilty, the accusatory model, the distribution of the burden of proof, and especially the right of defense. Because it a fundamental right, the prohibition of self-incrimination deserves a proper study to her constitutional nature. For the definition of protected persons is important to build a material concept of accused, which is different of the formal concept over who is denounced on the prosecution. In the objective area of protection, there are two objects of protection of the norm: the instinct of self-preservation of the subject and the ability to self-determination. Configuring essentially a evidence rule in criminal procedure, the analysis of the case should be based on standards set previously to indicate respect for the right. These standard include the right to information of the accused, the right to counsel and respect the voluntary participation. The study of violations cases, concentrated on the element of voluntariness, starting from the definition of what is or is not a coercion violative of self-determination. The right faces new challenges that deserve attention, especially the fight against terrorism and organized crime that force the development of tools, resources and technologies about proves, methods increasingly invasive and hidden, and allow the use of information not only for criminal prosecution, but also for the establishment of an intelligence strategy in the development of national and public security

A alteração do tipo penal de adulteração de combustíveis: reflexo da constitucionalização do direito penal no mercado de combustíveis

The neoconstitutionalism led to a process of ethical revaluation of the normative systems and the process of constitutionalization of the many fields of law. This study examines the consequences of this process in criminal law, so important a Law field for the protection of the most valuable assets by the society, including the fundamental guarantees, thus emphasizing the necessity of protection of the collective and individual rights, which are guided by the observance of the defendants individual rights in the course of criminal proceedings and the search for the best efficiency of penal protection, according to the corollaries of defense against the state (prohibition of the excess or Übermassverbot) and the provision of rights by the state (prohibition of insufficient protection or Untermassverbot). The offense of fuel adulteration is taken as an object of study, since it is a vital market to a nation dependent of people and good s movement for their living, driven by fossil and biofuels. Such a crime affects essential legal interests to the development of society, interests such as the environment, consumer relations and economic order, particularly the principle of free competition. This paper seeks to analyze the need of a greater efficiency of this particular criminal protection, once concluded the conduct harm and social fear as a consequence by it as growing, and therefore having its former crime type, engraved in Article 1 of Law No. 8.176/1991, rewritten in compliance with the criminal law s principle of legality. Thus, the reformation proposals and legislative creation involving this crime were observed, with emphasis on the bill No. 2498/2003, which keeps it as blank heterogeneous criminal norm, kind of penal normative whose constitutionality is raised, including the forethought of criminal responsibility in the perpetrating of the offense as culpable and subsequently increasing the applicable minimum penalty, as well as the inclusion of new activities in the typical nucleus

Dignidade da pessoa humana e medidas sócio-educativas do Estatuto da Criança e do Adolescente

The main goal of this work is to verify the presence of the principle of human dignity, determined by the Constitution of 1988, when Socio Educational Acts from the Statute of Children and adolescent were put in practice, focusing on the treatment designated to the youth whose acts were against the law in the city of Natal, as well as the difficulties to match the legal texts and its reality. It is common knowledge that the law for children and adolescent was based in the principle of human dignity, for its institutes say so. But would the Law match the practice of Socio Educational Acts? Or this law would be an example of good intentions that never left the paper and became reality? First there is an approach on the human dignity principle, with its definition and limitation, according to a theory about the theme. Afterwards it is made a connection between human rights and the principle of human dignity considering historical and social features, for the law is also a reflect of these transformations, we try to show the different laws the country had until today, concerning the children inflicted by poverty and those whose acts were against the law, since the rodas dos expostos, the phase of irregular situation, in which the children were arrested simply because they were beggars, until present time. The theory aspects are shown beside a field research made with the adolescent and staff from CEDUC/Natal, producing a critical view about the subject and showing some solutions for the problems found. At last, it is made a critical analyses of the problems detected on the field research, and, in some cases, a suggestion is given to change the reality

Finanças públicas na nova ordem constitucional brasileira: uma análise comportamental dos municípios potiguares, nos anos antecedentes e posteriores à lei de responsabilidade fiscal LRF

The object of the present dissertation is to analyze the behavior of the public finances of the districts of the state of Rio Grande do Norte (RN), taking as reference a period fundamentally previous to the implementation of the Fiscal Responsibility Law LRF, comparatively to the first years, immediately after the advent of the mentioned institutional milestone. The central hypothesis of this study proposes that, from the institutions' viewpoint, the LRF sets securely consistent rules, in the orchestration of the behavior of the municipal revenues and expenses. These regulations, on the other hand, might be effective and reach the districts of the RN indiscriminately, apart from stabilizing tendencies and which are sustainable in the long run. In spite of this, the indicators calculated reveal that the districts researched show, during all the period under analysis, a diminished capacity of self-tax collection , and consequently, a high participation of the intergovernmental transfers in the composition of the current revenues. This behavior indicates that the goal of strengthening the municipal public finances, forecast in the LRF, tends to be only partially accomplished, due to the fiscal decentralism. The analysis and interpretation of the data are conducted from the literature of institutionalist orientation and in descriptive statistical tools applied to the municipal strata of the state of Rio Grande do Norte. Further on, it's used the econometrical method Pooled OLS, which demands the elimination of the municipal strata in order to allow the use of the model, in the attempt to strengthen and/or ratify the results of the research. Finally, the evidence reached in the dissertation show that the LRF brings better conditions to the potiguar municipal public finances, predominantly to the economically stronger districts; whereas the less dynamic municipal entities show rather divergent evidence, that is, their economies seem to be more oriented to a more pronounced state participation; therefore, it generates in the state of RN a certain antithesis in the results reached in the dissertation

Prática do enfermeiro do Programa Saúde da Família PSF na promoção da saúde do adolescente

Attention to the health of adolescents, based on paradigm flexneriano, needs to be overcome. Since the International Conference of Ottawa (1986), the literature is developing a discussion of the promotion of health, based on the paradigm of social production in health, suggests a design to overcome the health care traditional practices. Program Health of the Family PSF has this purpose to transmute the model of existing assistance, where the nurse is an essential element to the work done in the program. Around this context, it is our purpose to analyze the practice of nurse of the PSF for the promotion of health of adolescents, produced by a search of descriptive quantitative approach with the inclusion of qualitative data. Interviews were conducted with 9 nurses 3 units of health of the family USF, Mossoró-RN and applied questionnaires with 74 teenagers aged between 15 and 19 years old, with some nearby public schools where USF operate these nurses. The quantitative descriptions were transformed on tables, pictures and graphics using the program Excel (Microsoft) and the qualitative were worked through the technique of analyzing the content of Bardin (2004). The review was realized using the reference to promote health brought by the study. The results show that the most common problems that happen with teenagers are the drugs (33,8%), pregnancy (27,0%) and political problems-socio-economic-cultural issues (24,3%). Adolescents are spontaneous demand and rarely seek the USF. The actions presented by the nurses as, lectures and groups, are nothing comparing to the macro-problems presented by adolescents, and verticalized irregular. The nurses know the promotion of health generally, not explaining how operate it from its daily practice. Concluded that the practice of nurse of the PSF has not yet reach the promotion of health of the adolescent, being necessary to scheduling modules on the subject to continuous training of teams, professionals from USF, as well as teachers and other staff of schools, giving space to the participation of academic. The discussions should be socialized with the community to discuss possibilities of confrontation of the problems, which also require socio-structural changes. This research can contribute as work-diagnosis, which experienced the reality of care in nursing PSF to a specific group

Enfermagem na atenção primária em saúde no screening de adolescentes com excesso de peso

One of the Primary Health Care strategies for adolescent health is the growth and development follow-up and the early detection of overweight adolescents. Even though the School Health Program in Brazil proposes to evaluate the nutritional state of the school population in the corresponding community health units, not all cities have adhered to the Program and many nurses do not recognize overweight as a problem in their territory. The objective of the study was to identify the nurse´s participation in the screening of overweight adolescent students in their work territory. Cross sectional study conducted in eight state supported schools of the municipality of Natal/RN and in four Primary Health Units. The total student population was 27.277. A stratified sample was statistically calculated based on the student population of the four city geographical zones: 112 North , 74 West; 108 East; and 78 South, totalizing 372 adolescents. The students were selected by a probability process where eight schools were first selected, two per district, until the number per subsample in each district was reached. Four primary health nurses, responsible for the health units were included. Two instruments were used for data collection, a screening questionnaire and a semi-structured interview form for questioning of the nurses. The content of both instruments was validated. Anthropometric and health data were collected from the students and analyzed with descriptive and analytical statistics. Interview data were transcribed and submitted to content analysis. The nursing diagnosis of overweight was identified in 50 (13,5%) of the adolescents and its association with consumption of foods that have cardiovascular risk (canned foods, pasta and fried food). An association of the nursing diagnosis was identified with family history (diabetes, hypertension, obesity, and kidney disease). The nurses judged that care of overweight adolescents was important but noted difficulties because of the absence of this population in the health units, because of their work overload, and the lack of school articulation. The nurses do not have impacting actions with this population and delegate the responsibility to other professionals. It is concluded that overweight is a nutritional problem relevant to the adolescent school population in Natal/RN, with a 13,5% prevalence and that it is related to food consumption with cardiovascular risk and family health history. The nurses consider overweight as an important public health problem but do not envision ways to maintain linkage with adolescents and with the school to promote the needed care

Responsabilidade social empresarial: modalidades e grau de participação em meios de hospedagem em Ponta Negra, Natal/RN

That work has as objective to investigate and to analyze the strategies which they were developed by companies of lodging means with ends of social responsibility in Rio Grande do Norte (RN). Therefore, it got data along with the Office of Tourism of the Municipal district of Natal , the Office of Tourism of RN and the cadasters of the firms of the lodging means in the district of Ponta Negra. In after research of field, it verified the enterprises that now develop lodging activities in that quarter in Ponta Negra. It applied Instrument of research which it was elaborated based on the set of indicators of social responsibility of Ethos Institute, structured with binary questions and some open ones. It shows as results which actions the investigated companies develop. Confronting these results with researched theoretical referencial, it points an intermediate degree of socially responsible actions. Comparing with the evaluation accomplished by Ethos Institute, the investigated firms are in incipient condition, with punctual actions, however, they already present the awakening about this thematic

A influência da responsabilidade social empresarial na satisfação e fidelidade do cliente : um estudo com compradores de automóveis

This study presents an investigation of the influence of Corporate Social Responsibility (CSR) in customer s satisfaction and loyalty through a study with car s buyers, besides that, it aims to contribute to conceptual models of satisfaction and loyalty analysis by applying the model of Johnson et al. (2001), adapted for the introduction of variables of CSR and conscious consumption, in a car dealership in Natal / RN. The methodology has a descriptive quantitative approach and for the analysis results were applied statistical methods of simple and multiple linear regression analysis, descriptive analysis and exploratory analysis. The field research provided 90 valid forms. The results show that CSR affects the image of the company studied and is also one of the elements of the compound of satisfaction and loyalty. This study concludes that CSR should be considered in the strategic and marketing actions of firms

A pegada de carbono como um dos indicadores de sustentabilidade para medição da responsabilidade socioambiental empresarial: um estudo de caso na unidade sede da Petrobras em Natal-RN

As a contemporary tendency, it is been evidenced that the environmental changes theme, already admitted as a concernment to international economical and political reality, is also gaining repercussion on industrial and business sector. Firms are implementing actions on trial to minimize their own greenhouse gases (GHG) emissions impacts. However, the great majority of those actions of Corporative Social-Environmental Responsibility (CSR) are referred only to direct emissions of the main production systems. Direct emissions are those derived of an isolate process, without considering the upstream and downstream processes emissions, which respond for the majority of emissions originated because of respective firm‟s production system existence. Because the greenhouse effect occurs globally and the GHG emissions contribute to the environmental changes independently of their origin, it must be taken into account the whole productive life cycle of products and systems, since the energy invested on resources extraction and necessary materials to the final disposal. To do so, it must be investigated all relevant steps of a product/production system life cycle, tracking all activities which emit greenhouse gases, directly or indirectly. This amount of emissions consists in the firm‟s Carbon Footprint. This research purpose is to defend the Carbon Footprint relevance and its adoption viability to be used as an Environmental Indicator on measurement/assessment of CSR. It has been realized a study case on Petrobras‟s seat unity at Natal-Brazil, assessing part of its Carbon Footprint. It has been used the software GEMIS 4.6 to do the emissions quantifying. The items measured were the direct emissions of the own unity vehicles and indirect emissions of offset paper (A4), energy and disposable plastic cups consumed. To 2009, these emissions were 3.811,94 tCO2eq. We may conclude that Carbon Footprint quantification is indispensable to the knowledge of real emissions caused by a productive process existence, must serving as basis to CSR decisions about the environmental changes reversion challenge