A era de publicização do inquérito policial e a face brasileira da labelling approach theory

Abstract

This work aims to relate the Labeling Approach Theory with relevant aspects present in the elaboration of the Police Inquiry model adopted in Brazil. In the foreground, we use the literature produced mainly by Norbert Elias and Howard Becker, exponents of the theory, to illustrate the criminological thinking adopted here. According to this theory, the class responsible for defining what conduct is considered a crime (for Norbert Elias, the "established") use the law to punish behaviors related to the marginalized classes, which they fear. The definition of criminal is steeped in subjectivism and becomes a label to be distributed to anyone connected with these classes, even if they have not committed any crime. Then, this research starts to characterize the Brazilian Police Inquiry, marked, above all, by the exclusion of the defense of the pre-procedural phase, since the investigated person has no right to the contradictory or the production of evidence at this stage, and the publicity of the investigations. As will be seen, the absence of broad defense during the Inquiry phase runs against the European and American Procedural Codes which, in keeping with the constitutional order that was established after World War II, sought to increase the protection afforded to the passive pole of criminal proceedings, guaranteeing their right to request evidence and judicial control at the inquisitorial stage. In this context, the draft of the New Code of Criminal Procedure, which has been in progress for ten years, intends to insert into the national legal system legislative innovations that will take care of democratizing the Police Inquiry, including the possibility of defensive investigation, creating an active defense during the Inquiry and giving birth to the figure of the Judge of Guarantees, Magistrate specially designated to control the legality of acts of the pre-procedural phase. Moreover, it will be demonstrated that the trend observed in recent years is the reversal of the rule provided for in Article 20 of the Brazilian Criminal Procedure Code, which establishes the secrecy of the findings, and becomes their publicity. In criminal cases of greater social repercussion, the Inquiry has been transformed into media entertainment, broadcast on television newspapers for the entire population to have access to and form their opinion on the authorship of a particular crime. Therefore, the exclusion of the inquiry's defense, coupled with its publicity to the detriment of the secrecy required by law, contributes to adding a new face to the Labeling Approach Theory. In Brazil, those who are the target of any criminal investigation, even if not convicted, are labeled as "criminals", which is a flagrant violation of the Constitutional Principle of Presumption of Innocence. In view of this, it is concluded that the Brazilian Police Inquiry must be adequately adapted to the current constitutional order, so as to contemplate a democratic criminal process, aware that it cannot arise from a purely inquisitorial pre-procedural phase.