A REPRODUÇÃO DO PROGRAMA INQUISITIVO NA EXECUÇÃO PENAL
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Data
2022-04-11
Autores
Almeida, Carlos Henrique Meneghel de
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Universidade Federal do Espírito Santo
Resumo
Criminal execution is full of operations that refer to the characteristics of the inquisitorial program pointed out by criminal procedure scholars. On the other hand, it is established that the Federal Constitution adopted the accusatorial program, remaining in doubt how it is possible that, despite such a constitutional option, there is a reproduction of the inquisitorial program in criminal execution. As accusatory and inquisitorial are usually called procedural systems, the delimitation of the concept of system is crucial. According to Niklas Luhmann's Theory of social systems, systemic unity is obtained by constantly differentiating the system from the environment, through its own binary code and its validity programs. Thus, the procedural “systems” would not be properly systems, but decision programs of the procedural legal system. The objective is to analyze the criminal procedural "systems" from the perspective of Niklas Luhmann's Theory of social systems and its application to the Brazilian criminal execution procedure, exploring and demonstrating some of the communications that lead to the reproduction of the inquisitorial program. For the Luhmannian theory, the Courts assume a central position in the law system, because through the judicial decision the law system delimits its borders and reaffirms its code. Therefore, explanatory bibliographic research was carried out, analyzing the decisions of the Superior Courts that demonstrate the reproduction of the inquisitorial program in criminal execution procedure. The inquisitorial program is characterized by the denial of the principles that guarantee judicial impartiality, namely, jurisdiction, accusatory, presumption of innocence and adversarial. Superior Courts routinely validate the reproduction of the inquisitorial program in criminal execution procedure. Keywords: Criminal procedural systems; Theory of social systems; Criminal execution procedure; Inquisitorial program; Accusatorial program.
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Sistemas Processuais Penais , Teoria dos Sistemas Sociais , Execução Penal , Programa Inquisitivo , Programa Acusatório