A relativização das nulidades absolutas no Processo Penal brasileiro e o Princípio do Devido Processo Legal: uma análise crítica.

Abstract

Dealing with the criminal procedure, the nullities theme always concerns and arouses controversy, especially because of the considerable dimension it takes in the sphere of the fundamental human rights in the opposite way of the State Power, which must apply the law in the concrete case fairly and without discrimination, making justice and maintaining the defense of social peace, based on handling of the criminal proceeding as a unquestionable instrument of this practice. This dissertation has the purpose of analyze the operation of the judge in the treatment of the nullities in the Brazilian criminal procedure, besides the study of the phenomenon of the absolute nullity relativisation and if it infringes the human rights which are essential to the due legal process. The relevance of this subject is showed through the controversy between doctrinal and jurisprudential position in relation of the phenomenon of the absolute nullity relativisation in the Brazilian criminal procedure. The objective is to study, in the legal and normative basis, if the reduction in the consequences of the infraconstitutional legislation established forms, on behalf of the celerity and procedural economy principles, is dotted of capacity to injure the Brazilian Federal Constitution, mainly the human right of the due legal process. In this context, what is perceived is that because of the polysemy of the concepts in the classification of the nullities, well as the reason of the numerous and diverse judgments involving this theme, demonstrates the insecurity for the ones under the jurisdiction, and, besides that, demands the realization of a deep research, including about the effectiveness of the constitutional guarantees. Then, in line with this scientific work purpose, the theme is discussed on the face of the theory and jurisprudential sense, in order to promote a review about reflections of the over-valuation of the discretion of the Judge in front of the damages on the human right of the due legal process implicit in the treatment of the nullities in the Brazilian criminal procedure. For an examination of the case in question, were used the hypothetical-deductive and the functionalist-systemic methods, as well as the method based on historical proceedings. In relation to the research techniques, this work is based in indirect documentation, specially about the bibliographic search; and, in a second moment, when the analyze is about all documentation judged by the Higher Courts, is also used indirect documentation, used this time in documentary research. Once undertaken the proposed analysis, according to the methodology used for this, it is concluded that the instrumentality of the criminal procedure must be conferred in balance with the parties' procedural guarantees, in such a way that a balance can be struck between the respect to the human right of the due legal process and the reasonable duration of process, accompanied by express participation of the main actors in the legal procedure.