A investigação criminal e a vedação ao anonimato no sistema jurídico brasileiro

The thesis, prepared with basis on deductive reasoning (through the utilization of general concepts of the fundamental rights theory) and on inductive logic (by means of the consideration of particular situations in which the theme has been approached) deals with the criminal investigation and the prohibition of anonymity in the Brazilian law system. The state criminal investigation activity presents not only a substantial constitutional basis, due to the objective dimension of fundamental rights (which imposes an obligation to protect these essential values), but also a formal constitutional basis, arising from the administrative principles of rule of law, morality and efficiency, referred to in article 37 of the Constitution. The criminal investigation, however, is not an unlimited pursuit, being restrained by the duty to consider fundamental rights that oppose to its realization. One of the limits of the state investigation activity, in the Brazilian law system, is the prohibition of anonymity, referred to in article 5°, IV, of the Constitution. This prohibition is a direct constitutional restriction to the freedom of expression that aims to ensure the credibility of the diffusion of ideas and prevent the abusive exercise of this fundamental right, which could harm both persons and the state, with no possibility of punishment to the offending party. Generally, based on this prohibition, it is affirmed that a criminal investigation cannot begin and progress founded on anonymous communication of crimes. Informations about crimes to the investigative authorities require the correct identification of the stakeholders. Therefore, it is sustained that the prohibition of anonymity also comprehends the prohibition of utilization of pseudonyms and heteronyms. The main purpose of this essay is to recognize the limits and possibilities in starting and conducting criminal investigations based on communication of crimes made by unidentified persons, behind the veil of anonymity or hidden by pseudonyms or heteronyms. Although the prohibition of article 5°, IV, of the Constitution is not submitted to direct or indirect constitutional restrictions, this impediment can be object of mitigation in certain cases, in attention to the constitutional values that support state investigation. The pertinence analysis of the restrictions to the constitutional anonymity prohibition must consider the proportionality, integrated by the partial elements of adequacy, necessity and strict sense proportionality. The criminal investigation is a means to achieve a purpose, the protection of fundamental rights, because the disclosure of facts, through the investigatory activity, gives rise to the accomplishment of measures in order to prevent or punish the violations eventually verified. So, the start and the development of the state criminal investigation activity, based on a crime communication carried out by an unidentified person, will depend on the demonstration that the setting up and continuity of an investigation procedure, in each case, are an adequate, necessary and (in a strict sense) proportional means to the protection of fundamental rights

A responsabilização criminal no estado democrático de direito: o equilíbrio entre a efetividade e os limites da pretensão punitiva da sociedade

This paper analyzes the relationship between fundamental rights and the exercise of the claim punitive society in a democratic state. It starts with the premise that there are fundamental rights that limit and determine the validity of all forms of manifestation of the claim punitive society (legislating, investigative, adjudicative or ministerial) and there are others that require the state the right exercise, fast and effective of these activities. Travels to history in order to see that the first meaning of these rights was built between the seventeenth and eighteenth centuries, after all a history of abuses committed by state agents in the exercise of criminal justice, and positively valued in the declarations of human rights and proclaimed in the constitutions after the American and French Revolutions, while the second meaning has been assigned between the nineteenth and twentieth centuries, when, because of the serious social problems generated largely by absenteeism state, it was noted that in addition to subjective rights the individual against the state, fundamental rights are also objective values, which trigger an order directed the state to protect them against the action of the offending individuals themselves (duty to protect), the mission of which the State seeks to discharge, among other means, through the issue of legal rules typifying the behavior detrimental to such rights, subject to penalties, and the concrete actions of public institutions created by the Constitution to operate penal law. Under this double bias, it is argued that the rule violates the Constitution in the exercise of the claim punitive society as much as by excess malfere fundamental rights that limit, as when it allows facts wrong by offending fundamental rights, remain unpunished either by inaction or by insufficient measures taken abstractly or concretely provided

“Escritores da liberdade”: histórias reais de jovens que cumpriram medidas socioeducativas em meio aberto no município do Natal/RN

Such work aims to analyze aspects of the lives of adolescents, authors of Infraction, after completion of the Socio-Educational Measures in Half Open (Probation - LA and Services to the Community - PSC) in the city of Natal / RN in 2010. Thus, it become necessary to point out and consider the socio-historical determinations that permeate the lives of these young men, estimating the economic, social, political and historical aspects. We understand that these individuals experience numerous expressions of Social Issues, such as lack of opportunities, violence, unemployment, among others. In the reduction context of the State actions for the social, and investments negligible in public policies. Thus, the research aimed to identify such determinations in the lives of adolescents, young people today, and aimed to know these adolescents and analyze the family situation, socio-economic and political these, after completion of educational measures; and to evaluate the inclusion in school life and in the labor market. Therefore, we used as a methodological way the qualiquantitative research, using the procedure of 4 (four) semi-structured interviews, 9 (nine) analysis processes by configuring so documentary research, through the analysis of reports, processes and monitoring documents. The universe of analysis went adolescents who fulfilled socio-educational measures in liberty in the city of Natal / RN. The sample consisted of nine (9) young, that we follow during the mandatory curricular training, in the period of graduation in Social Work at the Federal University of Rio Grande do Norte, in 2010. The time frame of the research took place between 2010 - 2014. The results of this study indicate that the solution to problems of violence is not the reduction of criminal majority. It is necessary to take actions in ensuring rights and allow other living conditions to the children and adolescents, because, in fact, in the society there is a tendency to regression of rights. We learn that, despite all the difficulties, as: low education, access to the labor market, low income, among others, young people interviewed understand the Socio-Educational Measures such as a watershed in their lives, because, they do not practice more illicit acts, they seek a better life, they have dreams and plans for the future, and they continue writing their histories.

“Escritores da liberdade”: histórias reais de jovens que cumpriram medidas socioeducativas em meio aberto no município do Natal/RN

Such work aims to analyze aspects of the lives of adolescents, authors of Infraction, after completion of the Socio-Educational Measures in Half Open (Probation - LA and Services to the Community - PSC) in the city of Natal / RN in 2010. Thus, it become necessary to point out and consider the socio-historical determinations that permeate the lives of these young men, estimating the economic, social, political and historical aspects. We understand that these individuals experience numerous expressions of Social Issues, such as lack of opportunities, violence, unemployment, among others. In the reduction context of the State actions for the social, and investments negligible in public policies. Thus, the research aimed to identify such determinations in the lives of adolescents, young people today, and aimed to know these adolescents and analyze the family situation, socio-economic and political these, after completion of educational measures; and to evaluate the inclusion in school life and in the labor market. Therefore, we used as a methodological way the qualiquantitative research, using the procedure of 4 (four) semi-structured interviews, 9 (nine) analysis processes by configuring so documentary research, through the analysis of reports, processes and monitoring documents. The universe of analysis went adolescents who fulfilled socio-educational measures in liberty in the city of Natal / RN. The sample consisted of nine (9) young, that we follow during the mandatory curricular training, in the period of graduation in Social Work at the Federal University of Rio Grande do Norte, in 2010. The time frame of the research took place between 2010 - 2014. The results of this study indicate that the solution to problems of violence is not the reduction of criminal majority. It is necessary to take actions in ensuring rights and allow other living conditions to the children and adolescents, because, in fact, in the society there is a tendency to regression of rights. We learn that, despite all the difficulties, as: low education, access to the labor market, low income, among others, young people interviewed understand the Socio-Educational Measures such as a watershed in their lives, because, they do not practice more illicit acts, they seek a better life, they have dreams and plans for the future, and they continue writing their histories.

As raízes históricas da política criminal na legislação e nas práticas de atendimento ao adolescente em conflito com a lei

This thesis investigates the historical influence of the criminal policy in the context that shapes the first specific law for children and adolescents in Brazil, the 1927 Children's Code, a standard that inaugurates the conceptual scission between children and "minor" and their different treatment by the State. The study addresses the demand for order in the context of changes in the working world in the transition from the slave system to the capitalist mode of production, and the corresponding disciplinary and punitive control mechanisms directed to the segment of childhood and adolescence. The theoretical route proposes a questioning of the political construction of law and justice, as well as the conformation of the punitive techniques, and the construction of the stereotype of the "delinquent", prime target of the criminal policy, focusing on the process of criminalization of the segment in question through the confrontation of the Critical perspective with the approaches of Classical and Positive schools. This research shows the imposition of a bourgeois morality that obscures the social conflict attributing it to people isolated by the criminalization of their conduct; and points out that the historical forms of selective social control were greatly influenced by psychiatry and psychology, either by the elaboration of the image of the "delinquent" or by the expected performance of custodial institutions. Finally, the developments and the permanence of the historical roots of the criminal policy are problematized, relating them to the difficulties currently encountered in the consolidation of the legal garantism paradigm proposed by the Children and Adolescent Statute.

As raízes históricas da política criminal na legislação e nas práticas de atendimento ao adolescente em conflito com a lei

This thesis investigates the historical influence of the criminal policy in the context that shapes the first specific law for children and adolescents in Brazil, the 1927 Children's Code, a standard that inaugurates the conceptual scission between children and "minor" and their different treatment by the State. The study addresses the demand for order in the context of changes in the working world in the transition from the slave system to the capitalist mode of production, and the corresponding disciplinary and punitive control mechanisms directed to the segment of childhood and adolescence. The theoretical route proposes a questioning of the political construction of law and justice, as well as the conformation of the punitive techniques, and the construction of the stereotype of the "delinquent", prime target of the criminal policy, focusing on the process of criminalization of the segment in question through the confrontation of the Critical perspective with the approaches of Classical and Positive schools. This research shows the imposition of a bourgeois morality that obscures the social conflict attributing it to people isolated by the criminalization of their conduct; and points out that the historical forms of selective social control were greatly influenced by psychiatry and psychology, either by the elaboration of the image of the "delinquent" or by the expected performance of custodial institutions. Finally, the developments and the permanence of the historical roots of the criminal policy are problematized, relating them to the difficulties currently encountered in the consolidation of the legal garantism paradigm proposed by the Children and Adolescent Statute.