A investigação criminal e a vedação ao anonimato no sistema jurídico brasileiro
The thesis, prepared with basis on deductive reasoning (through the utilization of general concepts of the fundamental rights theory) and on inductive logic (by means of the consideration of particular situations in which the theme has been approached) deals with the criminal investigation and th...
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Formato: | Dissertação |
Idioma: | por |
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Universidade Federal do Rio Grande do Norte
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Endereço do item: | https://repositorio.ufrn.br/jspui/handle/123456789/13930 |
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Resumo: | The thesis, prepared with basis on deductive reasoning (through the utilization of general
concepts of the fundamental rights theory) and on inductive logic (by means of the
consideration of particular situations in which the theme has been approached) deals with the
criminal investigation and the prohibition of anonymity in the Brazilian law system. The state
criminal investigation activity presents not only a substantial constitutional basis, due to the
objective dimension of fundamental rights (which imposes an obligation to protect these
essential values), but also a formal constitutional basis, arising from the administrative
principles of rule of law, morality and efficiency, referred to in article 37 of the Constitution.
The criminal investigation, however, is not an unlimited pursuit, being restrained by the duty
to consider fundamental rights that oppose to its realization. One of the limits of the state
investigation activity, in the Brazilian law system, is the prohibition of anonymity, referred to
in article 5°, IV, of the Constitution. This prohibition is a direct constitutional restriction to
the freedom of expression that aims to ensure the credibility of the diffusion of ideas and
prevent the abusive exercise of this fundamental right, which could harm both persons and the
state, with no possibility of punishment to the offending party. Generally, based on this
prohibition, it is affirmed that a criminal investigation cannot begin and progress founded on
anonymous communication of crimes. Informations about crimes to the investigative
authorities require the correct identification of the stakeholders. Therefore, it is sustained that
the prohibition of anonymity also comprehends the prohibition of utilization of pseudonyms
and heteronyms. The main purpose of this essay is to recognize the limits and possibilities in
starting and conducting criminal investigations based on communication of crimes made by
unidentified persons, behind the veil of anonymity or hidden by pseudonyms or heteronyms.
Although the prohibition of article 5°, IV, of the Constitution is not submitted to direct or
indirect constitutional restrictions, this impediment can be object of mitigation in certain
cases, in attention to the constitutional values that support state investigation. The pertinence
analysis of the restrictions to the constitutional anonymity prohibition must consider the
proportionality, integrated by the partial elements of adequacy, necessity and strict sense
proportionality. The criminal investigation is a means to achieve a purpose, the protection of
fundamental rights, because the disclosure of facts, through the investigatory activity, gives
rise to the accomplishment of measures in order to prevent or punish the violations eventually
verified. So, the start and the development of the state criminal investigation activity, based
on a crime communication carried out by an unidentified person, will depend on the
demonstration that the setting up and continuity of an investigation procedure, in each case,
are an adequate, necessary and (in a strict sense) proportional means to the protection of
fundamental rights |
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