NUNES, M. S.; http://lattes.cnpq.br/6703464831029401; NUNES, Matheus Simões.
Resumo:
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.