A motivação das decisões penais a partir da teoria garantista

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

As it is known, the 1988 Federal Constitution, in its section 93, subheading IX, sets forth that all the trials of the Judiciary bodies shall be public and all the decisions shall be grounded, under the penalty of being deemed void. Hence, this paper intends to identify how the motivation must be created in order to conform to the constitution, and thus legitimate the actions of the Judiciary members concerning the legality of the reasons contained in their decisions. Besides the motivation issue (and as a background to it), in the guaranteeing accusatory model, respectful eyes are darted towards the judge role, stressing his independence, as well as his impossibility of having powers over the management of evidences, highlighting his role of warrantor of the fundamental rights, the possibility of criticizing laws that do not conform to the constitutional plan in order to, consequently, denounce their nullities. In view of that, the fundamental rights (guarantees) of Luigi Ferrajoli are approached as a theoretical referential, which is basically justified by two vectors: (i) it is an ideal model of guarantees (granted to the defendant in a criminal proceeding), through which the arbitrary use of the state power is limited, safeguarding the rationality of the punitive system and; (ii) the 1988 Federal Constitution, when it foresaw the legal defense, the due process of law, the contradictory, and the private function of the Department of Justice to promote a public criminal action, had set forth the grounds of an accusatory/warranting criminal proceeding, which shall project towards the infra-constitutional legislation, demanding the construction and the adaptation of the legal system based on the constitutional writing. Basically, this paper intends to demonstrate the function of the motivation in the rule of law, enlightening its role of a guarantee for the other guarantees, that is, a guarantee that gives birth to another one, as well as its fundamental value represented by a cognitive character, in order to intertwine the court to the analysis of all the evidences of the factual matter that concretizes the accusation hypothesis, as well as the strict legality concerning the law matter. Under this viewpoint, the motivation for the court decisions will be justified as a procedural and political guarantee, and therefore its significance must be highlighted as a democratic position in the criminal proceeding. Following, we lay emphasis on some vices that obstruct such motivation and therefore must be constitutionally deemed void. Anyway, the need for a legal motivation based on rational opinions and analysis will be stressed, since they must allow an empirical opposition and refutation, making possible that the parties, a higher jurisdictional body or the whole society control the magistrates acts, since they have granted to the Judiciary the crucial power to solve crimes and apply the penalties to the guilty, what, in the past, has been dangerously made privately

ASSUNTO(S)

constitutional garantia constitucional direito penal fundamental rights (guarantees) direito decisão judicial criminal decisão judicial jurisdição penal juiz direito processual proceeding motivation processo penal garantismo jurisdição

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