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

Paradigma constitucional brasileiro da livre concorrência e da defesa do consumidor face às estruturas de poder no mercado

The Federal Constitution of 1988, when taking care of the economical order, denotes special concern in the abuses of the economical power and the disloyal competition. The mark to mediate of all this is, in fact, the defense and the consumer's protection, once this is final addressee of whatever if it puts at the consumption market. The coming of the Law 8.078/90, Code of Protection and Defense of the Consumer, inaugurates a time of effective concern with the homogeneous individual interests originating from of the consumption relationships. In this point, the focus of main to face of the present work lives, in other words, the protection of the right to the individual property, especially manifests in the exercise of the trade freedom that keeps direct relationship with the respective social function the one that is destined. The code of the consumer's defense doesn't just take care of this, but also of the other star of the relationships of the consumption. When affirming in the interruption VI of the art. 4th that the national politics of those relationships, finds ballast in the prohibition and repression efficient of all of the abuses committed in the consumption relationships, keeping inherent relationship-causality in the economical order, sculpted for the article 170 in the Constitution of 1988. In the generic plan, the mark of the present work is to question concerning the limits of the trade freedom and previsible collisions with protection norms and the consumer's defense, as well as factual convergences of those small systems, especially in what he/she refers to the innate interests to the suppliers. In the specific plan, we aspirated to identify the protection device-commands to the actors of the trade relationship, capable to guarantee the free competition in a global economy of market, seeking especially the Well-being, for soon afterwards, in an analytical perspective, to discover the possible applications that it holds the Federal Constitution, in headquarters of economical freedoms. It was observed that the consumer today doesn't need only of laws that their needs, fruit of the vulnerability that it is him/her meditate innate. He/she lacks, yes, of effective mechanisms that prevent lesions that can be them impinged by the suppliers at the time in that you/they are useful to repair the damages when happened, punishing the author of the damage

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

O princípio da vedação ao retrocesso social e o papel dos poderes públicos na efetivação dos direitos fundamentais sociais

The purpose of this dissertation is to analyze the role of Public Powers in the enforcement of fundamental social rights, according to the principle of prohibition to social regression. The Federal Constitution of Brazil, situated in a position normative hierarchical superior, disciplines the legal and political process of the country, determining how Public Powers (Legislative, Executive and Judiciary) should act to enforce fundamental rights (social). Thus, features a cast of fundamental rights that aim to ensure social justice, highlighting the concern to ensure social values aimed at reducing social inequalities. The will of the state should be prevented by controlling the constitutionality of measures which restrict fundamental social rights, assuming the principle of human dignity, pillar of Social and Democratic State of Right, a dual role in the brazilian legal system, acting as the presupposition of jurisdictional control of the constitutionality of restrictive acts and as supervisory of omission or insufficient action of the State in the fulfillment of their fundamental duties. The constitutional determinations remove from the legislator the option to create or not the law that prints effectiveness to the social rights, as well as from the Executive the option of to execute or not rules directed at realization of the constitutional parameters, and Judiciary to behave or not in accordance with the Constitution, being given to the Powers only the arbitrariness of "how" to do, so that all functions performed by public actors to use the Constitution as a repository of the foundational values of the collectivity. Any situation that does not conform the principle of proportionality in relation to the enforcement of fundamental rights, especially the social, represents an unacceptable social regression unconstitutional. The constitutional rules and principles postulated by the realization of the rights, freedoms and guarantees of the human person, acting the principle of prohibition to social regression to regulate a concrete situation, whenever it is intended to change, reducing or deleting, the content of a social right. This paper of limit of state action serves to provide to the society legal security and protection of trust, ensuring the core of every social right. This should be effected to be sheltered the existential minimum, as a guarantee of the inviolability of human life, respecting the constitutional will, not falling into social regression

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

Escravidão na Vila do Príncipe, província do Rio Grande do Norte (1850/1888)

This dissertation presents a study on the slave population of Vila do Príncipe, from 1850 to 1888, based on the judicial and notarial collection of hand written documents as well as on the Reports of Presidents of the Province of Rio Grande do Norte. The issue that drives the research relates to the reproduction of slavery in a region of cattle breeding colonization. Therefore, the research aims to understand how in a peripheral socio-economic place (in Vila do Príncipe, cattle breeding Seridó) after the prohibition of the African slave trade, the slave relationships subsisted and structured themselves. In the sense, the research analyzed the dynamics of socio-economic slave units and their relationship with space, ownership structure and the slave family.

O significado da morte para adolescentes, adultos e idosos

Apesar do aumento na quantidade de trabalhos que visam a abordar a morte como tema de investigação, observa-se que ainda prevalece a interdição do assunto morte, dificultando que ela seja abordada e discutida. Este estudo buscou ampliar a compreensão de como pessoas, em diferentes etapas desenvolvimentais, lidam com perdas e com a própria finitude. Para isso, 7 adolescentes, 14 adultos de meia-idade e 10 idosos foram entrevistados, e os dados foram compreendidos mediante análise de conteúdo. Entre os participantes, os adultos foram os que mostraram mais aflição e inquietação, ao falarem sobre a própria finitude e sobre a possibilidade da morte de pessoas queridas. Os adolescentes abordaram-na como um acontecimento distante e impessoal, enquanto os idosos se referiram a ela com maior proximidade e aceitação. Sugere-se a realização de estudos que aprofundem tais compreensões, relacionando-as às diferentes religiões, classes sociais e experiências com perdas.

Efeito da coesão semântica sobre a discriminação de itens emocionais em testes de memória de reconhecimento de palavras

Highly emotional itens are best remembered in emotional memory tasks than neutral items. An example of emotional item that benefits declarative memory processes are the taboo words. These words undergo from a conventional prohibition, imposed by tradition or custom. Literature suggests that the strongest recollection these words is due to emotional arousal, as well as, the fact that they form a cohesive semantic group, which is a positive additive effect. However, studies with semantic lists show that cohesion can have a negative effect of interference, impairing memory. We analyzed, in two experiments, the effect of arousal and semantic cohesion of taboo words on recognition tests, comparing with into two other word categories: semantically related and without emotional arousal (semantic category) and neutral, with low semantic relation (objects). Our results indicate that cohesion has interfered whith the performance of the test by increasing the number of false alarms. This effect was strongly observed in the semantic category of words in both experiments, but also in the neutral and taboo words, when both were explicitly considered as semantic categories through the instruction of the test in Experiment 2. Despite the impairment induced by semantic cohesion in both experiments, the taboo words were more discriminated than others, and this result agrees with the indication of the emotional arousal as the main factor for the best recollection of emotional items in memory tests

Debates sobre educação feminina no século XIX: Nísia Floresta e Maria Amália Vaz de Carvalho

L'article discute la structure discoursive de deux oeuvres qui représentent des voix féminines en défense de l'éducation et du travail des femmes et qui ont eu quelque répercussion au Brésil au XIXe siècle : Opúsculo humanitário (1853), de la brésilienne Nísia Floresta (1809 ou 1810-1885), et Mulheres e crianças (1880), de la portugaise Maria Amália Vaz de Carvalho (1847-1921). Nous avons essayé d'identifier à qui les textes étaient adressés et comment ils justifiaient le droit d'auteur et l'érudition féminine à un moment où la traditionnelle interdiction du mot public et de la presse aux femmes commençait à être questionnée.

Microrganismos patogênicos, celularidade e resíduos de antimicrobianos no leite bovino produzido no sistema orgânico

Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP)

Cúrcuma: planta medicinal, condimentar e de outros usos potenciais

A cúrcuma (Curcuma longa L.), espécie originária do sudeste asiático, é considerada uma preciosa especiaria. Com a proibição do uso de pigmentos sintéticos nos principais países da América do Norte e Europa, têm sido procuradas alternativas naturais. A cúrcuma, além de sua principal utilização como condimento, possui substâncias antioxidantes, antimicrobianas e corantes (curcumina) que lhe conferem possibilidade de emprego nas áreas de cosméticos, têxtil, medicinal e alimentício. Até o presente momento, poucos estudos foram realizados com a cúrcuma no Brasil, fato que determina baixa produtividade. Entretanto, recentes resultados de pesquisa mostram a possibilidade de obtenção de produtividades semelhantes às de seu país de origem, ainda que maiores estudos sejam necessários para definição de estande, adubação e outras práticas culturais. Os objetivos do presente trabalho são apresentar a versatilidade mercadológica da cúrcuma, caracterizar a espécie quanto a aspectos botânicos, nutricionais e químicos, bem como reunir e discutir informações técnicas para melhoria da produtividade e qualidade dos rizomas.

Dissipation of DDT in a heavily contaminated soil in Mato Grosso, Brazil

After the prohibition of organochlorine-pesticide use in Brazil for controlling insect vector diseases, Mato Grosso State gathered the exceeding DDT and stored it irregularly in an open air area that belongs to the National Health Foundation, causing soil contamination. This study aimed to evaluate the contamination level and dissipation of p,p′-DDT and p,p′-DDE in this area. For that, surface soil samples were collected on 19 September 2000, 15 December 2000, 4 April 2001 and soil samples 30-40 cm; 60-70 cm and 90-100 cm deep were taken from five points in the studied area on 17 July 2001. The contaminants were determined by a small scale method which consists on extraction and clean-up steps combined into one step by transferring soil samples mixed with neutral alumina to a chromatographic column prepacked with neutral alumina and elution with hexane:dichloromethane (7:3 v:v). The eluate was concentrated and the analytes were quantified by gas chromatography with an electron-capture detector. p,p′-DDT at surface soil ranged from 3800 to 7300 mg kg -1. 30-40 cm deep soil sample concentrations varied from 0.036 to 440 mg kg -1 while 90-100 cm deep samples varied from 0.069 to 180 mg kg -1. Volatilization is probably the main dissipation process. The p,p′-DDT is moving slowly downward in the soil profile, however, the levels of this contaminant are high enough to present risk to underground waters. © 2005 Elsevier Ltd. All rights reserved.

Uma pesquisa sobre a opinião pública sobre incentivos financeiros para doação de óvulos no Brasil

Objective: The objective of this study was to assess the opinions of the Brazilian population about incentives for oocyte donation. Methods: A cross-sectional descriptive approach was used to consult the Brazilian public. The data collection involved the use of a structured questionnaire about legal and ethical issues surrounding oocyte donation. Individuals were randomly selected from the general population using different e-mail lists. Potential participants were contacted by e-mail and invited to participate in the study by completing an online web survey. Results: A total of 1,565 people completed the survey, including 1,284 women(82%) and 281 men(18%). Among the respondents, 1,309(83.6%) were university graduates, 1,033(66%) had a personal income ≥1,250 US dollars/month, 1,346(86%) considered themselves to be religious and 518 (33.1%) were health professionals. While many participants believed that women may donate their oocytes for altruistic reasons, the majority believed that a lack of oocyte donations is due to the prohibition of payments(64.3%) and that incentives would facilitate the decision to donate oocytes(84.7%). The majority of the participants(65.3%) agreed that a financial incentive(i.e., paying the donor) would be the most practical solution for increasing the number of oocyte donations. These results tended to be independent of gender, age, income, religion, education level and profession. Conclusion: While the Brazilian Federal Council of Medicine prohibits payments for oocyte donation, the majority of study participants had no objection to compensating oocyte donors. Moreover, most of the participants agreed that a financial incentive is the most practical solution to increasing the number of oocyte donations.

O tipo penal de disparo de arma de fogo como espécie dos delitos contra a incolumidade pública: uma antecipação de tutela penal legitimável

Pós-graduação em Direito - FCHS