NON-POLICE CRIMINAL INVESTIGATIONS: FROM INQUISITORIAL UNILATERALISM TO THE GUARANTEED OPENING OF THE BRAZILIAN CRIMINAL PROCEDURE

Abstract

Even after the topical reforms that occurred in the Brazilian criminal procedure under the guidance of the 1988 Federal Constitution, with the purpose of establishing the accusatory system, they succeeded without, even currently, any legal authorization that allows the participation of non-police agents, whether from the defense or the prosecution, in an active search for the evidence necessary for the criminal procedural instruction. However, the introduction of other agents, beyond the police, is necessary to achieve a precise instruction, in which the procedural truth is close to the real truth, and a judgment as consistent as possible with the latter, as prescribed by the accusatory model. In view of this, this work analyzes the establishment of investigations developed by subjects legally interested in criminal prosecution. Thus, the practical and normative obstacles that prevent the execution of these investigative methodologies in the Brazilian criminal procedure are analyzed, as well as their reflections on the accusatory system. For the development of this work, the technical procedures of documentary, bibliographic, and ex-post-facto research were employed, using the deductive method as the main method and the comparative auxiliary method. The research has exploratory and explanatory objectives and a qualitative approach to the problem. The conclusions reached were that non-police criminal investigations, in addition to being compatible, are an improvement to the accusatory system and stem, among other things, from the need to relieve the Brazilian judicial police. Furthermore, it was also presented that the establishment of these investigative methodologies would not be responsible for removing the State's investigative power and that they would be essential for establishing a contradictory process in the pre-jurisdictional phase of criminal prosecution. However, it was concluded that the main obstacle to the development of non-police criminal investigations in Brazil is the lack of regulatory legislation, even though there are already several international examples on the subject. Therefore, legislating on the subject, especially in order to include some regulations about it in the criminal procedure code, is crucial to its establishment in Brazil. Changes to the draft of the new criminal procedure code on the subject of non-police criminal investigations were suggested in an appendix to this work.