RELATED NULLITIES: A LOOK AT THE CRIMINAL PROCEDURE CODE

Abstract

The research is based on the study of the system of instrumentality of forms, a principle that is included in the Criminal Procedure Code, replacing the system of legality of forms. The method used for the development of the research was deductive, with analysis of doctrinal thoughts, such as those of the Illustrious Jurists Ada Pellegrini, Aury Lopes Junior and Ricardo Jacobsen Gloeckner, with works of high relevance to the object under study. In addition, the qualitative method constitutes the research, examining the incidence of nullities in the procedural sphere and the immersion of the instrumentality system of forms in relative nullities, which, genuinely, was extracted from the civil process and, inserted in the criminal process, to allow the flexibilization of the decree of the relative nullities when argued in due course. The result to be measured with the application of the principle of instrumentality of forms in the criminal procedural sphere, demonstrates the formal mutation, in which the damage, although demonstrated, may not be decreed, according to the understanding of the magistrate in the specific case, if the purpose be protected, which may be fearful for the defendant. Criticism of this system is present on the argument of violation of constitutional principles and greater power to the state, limiting the accused. It is verified, then, that the system of instrumentality of the forms, guards itself from serious contentment, exposing itself to the risk of generating even more injustices in the penal scope, if the relative nullity is validated.