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

Os significados de ludoterapia para as protagonistas do processo: crianças em atendimento

The ludic therapy in a Phenomenological-Existential perspective is conceived as a psychotherapeutic process in which, the listening and talking, mediated by playing activities, allow the child to deal with their grief/suffering. This study is based on the need to broaden the understanding of this modality of clinical intervention by emphasizing the speech of the protagonists in the process: children in therapy. The objective was to understand the ludic therapy from the children s perspective, knowing the meanings assigned to the therapeutic process, to the psychologist and to the involvement of the children in clinical consultations. The main ideas that underlie this research are presented in three theoretical chapters covering, respectively, the suffering of children and the demand for psychotherapy, the Phenomenological-Existential clinical psychology, and the psychotherapy for children, in Brazil, under this theoretical-methodological approach. The study was qualitative, on a phenomenological basis, and included six children as participants, aged between six and ten years, undergoing ludic therapy for at least six months, and referred by their own therapists. In the research s corpus construction, individual meetings were held and mediated by tools to support expressiveness (ludic and pictures/figures boxes), added by the storytelling of an incomplete story about a child s visit to the therapy session, and the request for the elaboration of a message to be passed to a child who will go to see a psychologist. The analysis of the data was based on a variant of the phenomenological method proposed by Amedeo Giorgi. The results reveal a lack of knowledge by the children about the psychologist s activities. Thus, the children develop fantasies about this intervention modality because of lack of information. These observations are consistent with the historical meanings assigned to clinical psychology, involving ideas of normality and guilt. The meanings associated with the motives for a referral to a psychologist highlight the conflict "be a problem versus having a problem" and an elitist conception of clinical psychology. Children understand the characteristics of the therapeutic process, such as the specifics of the therapist-client relationship and the notion of freedom. They also demonstrate remarkable pleasure in the therapeutic process. Finally, it was concluded that the meanings attributed to the ludic therapy by the children are consistent with that proposed in the literature about the children s psychotherapy process in the Phenomenological-Existential perspective. Moreover, the relevance of both the children s experience in the therapeutic setting and the meanings of these proceedings understood by the children are highlighted by the listening to the protagonists in the ludic therapeutic process. The comprehension of these aspects and their transference from the clients experience to the reflective field, promote advances in the understanding of child psychotherapy and indicate the need for further studies with children using this approach.