A aplicação da investigação criminal defensiva no Brasil.

Abstract

This work addresses the concept and historical evolution of criminal investigation, specifically focusing on the Brazilian investigative tool, the police inquiry (inquérito policial). It also discusses the Principles of Due Process of Law, Adversarial System, Right to a Fair Trial, and Equality of Arms, aiming to explore them within the Brazilian legal framework. The study also sought to analyze the concept of defensive criminal investigation and its use in foreign legislations, as well as its application in Brazilian law, by examining Provision 188/2018 of the Federal Council of the Brazilian Bar Association (OAB), which regulates the exercise of the lawyer's professional prerogative when conducting investigative proceedings to support administrative and judicial procedures, known as defensive criminal investigation. In terms of methodology, this research constitutes an exploratory study using a deductive approach, analytical procedure method, complemented by a historical-evolutionary perspective, and indirect bibliographical and documentary techniques. The study aimed to analyze the existence of the Adversarial System and Right to a Fair Trial in criminal investigation and criminal proceedings, exploring the possibility and appropriateness of the defensive criminal investigation instrument in the Brazilian legal system. This instrument was introduced to mitigate the imbalance of power during the investigative phase, assessing its constitutionality under the Federal Constitution and its applicability in Brazilian law. Thus, it was revealed that, even to a limited extent, the right to defense exists during the police inquiry phase. It was also found that Provision 188/2018 of the Federal Council of the OAB is constitutionally supported and can and should be implemented in Brazil as a means to balance justice and equity within the Brazilian legal system.