A CRITICAL PERSPECTIVE ON NULLITIES IN THE CRIMINAL PROCEDURE: THE RELATIVIZATION OF FUNDAMENTAL GUARANTEES BASED ON THE UNREASONABLE REQUIREMENT OF PROOF OF LOSS

Abstract

This article was dedicated to analyzing the relativization of fundamental rights and guarantees based on the non-recognition of nullities as absolute, demanding - in an unreasonable and increasingly more so - the demonstration of the damage to the invalidity of the act. The research is based on the premise that there is no consensus in doctrine and jurisprudence regarding what is relative nullity and what is absolute nullity, the main consequence being the relativization of fundamental rights and guarantees. Based on bibliographical-documentary research, we seek to analyze the current penal system, the historical-cultural phenomena that permeate them and the conceptions and implications of the institute under study. The results achieved demonstrate that court decisions are based exclusively on the idea of ​​non-invalidity of the act and consequent repetition, even if this requires non-compliance with procedural and constitutional rules. It is concluded that there is an emergency in the standardization of decisions and the observance of legal diplomas, with consequent safeguarding of the rights of those subject to criminal proceedings.