Investigação defensiva e a necessidade de sua implementação no ordenamento jurídico brasileiro

Abstract

This work discusses the importance of the defense in the pre-procedural phase highlighting the police investigation, which is the most used mean of criminal investigation in Brazil. From the analysis of the procedural operation, it has been demonstrated that the defense's margin of actuation is negligible within the investigations. This feature generates a great weapons disparity between accusation and defense, demonstrating the importance of the defense to be able to carry out the investigation on itself. Thus, it would be possible to ensure the respect of individual rights and the defense could be to influence the opinio delicti of the District Attorneyand the groundings of the judge's decision accept or not the D.A.’s complaint.It was also possible to conclude that the evidence obtained by the criminal investigation has a great relevance for the procedural phase, because they are not completely disconnected from the whole process, being required to apply the contradictory principle. An analysis of the Brazilian Constitution and Foreign Lawswas performed with the objective of showing that the principles of the lawsuit, ample defense and contradictory principles must be respected even in the pre-procedural stage. The passive subject must have his right respected from the beginning of the investigation up until the end of the judicial prosecution and the Democratic Rule of Law must always protect individual rights. Lastly, it was performed a study on new rules, laws and draft laws that predict the right for the defensive investigation. It can be concluded that the broad defense and the contradictory principles are not fully respected today, mainly due to the absence of the defense in this phase, demonstrating the importance of its actuation and presence as a guardian of justice system and its principles.