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

Entre júbilo e ruína: a perspectiva trágica de Nietzsche

It is investigating why reason Nietzsche affirms, in 1888, when revises his work (Ecce Homo), that to be exactly with The Birth of Tragedy it will be necessary to forget some things , and, in spite of, insist, in the same writing, in naming himself the first tragic philosopher - that is, the opposite and antipode of a pessimistic philosopher . Nietzsche elaborates in The Birth of Tragedy a theory about tragic starting from the opposition and complementarity among Apollo and Dionysian, rationalism and instinct, and in the refusal of the pessimistic perspective. The objective of the dissertation is to discuss how the theory of tragedy modifies due to the rupture with the inspiring of the first moment of the nietzschian philosophy, Schopenhauer and Wagner - maybe the such things to be forgotten about The Birth of Tragedy - and the implications of this rupture, that transforms the philosophy of Nietzsche in dissident of the metaphysical tradition. Like this, it is noticed that there is more continuity than estrangement in what concerns to the definition of tragic, just announced in 1871. By the sentence of the eternal return to the concept of will of power Nietzsche elaborates a tragic perspective, marked by the Dionysian celebration of the life, also acted through the pessimism dionisiac , defined in Gaya Science's § 370 (1881-2), and of the sentence of the love fate, enunciated in the §276 of the same work; all those concepts, discussed in this research, concentrate, decisively, the acceptance idea and statement of life, or more precisely, the decline of the tragic hero, between joy and ruin