Rewarded delation: legal nature and limits in accordance with due process of law / Delação premiada: natureza jurídica e delimitação segundo o devido processo legal

AUTOR(ES)
DATA DE PUBLICAÇÃO

2008

RESUMO

In the Brazilian legal system, a diversity of legal texts may be identified contemplating rewarded delation; this causes difficulties about its scope, the definition of its legal nature, characterizing elements, form and proceeding moment of collection and validity as proof. This institute, modeled upon the one existing in the Italian law, was adopted as a form of fighting against groups organized for delinquency and has shown its importance as a way of obtaining information about hierarchical levels, composition, way of operation, territorial scope and objectives of the activities of such organisms. After showing the importance of the rewarded delation as an instrument for fighting organized crime, this paper proposes to understand the institute in accordance with its constituent elements, its structure and insertion in the dogmas and in the criminal law, particularly with respect to the due process of law. For this reason, it is focused on the identification of the legal nature of rewarded delation as well as on the comparison with similar institutes, so as to, in sequence, to allow the discussion of its adoption by the lawmakers and of its coherence with constitutional and criminal norms system. Moreover, since the institute regards an investigative need, there is a preoccupation with the consequences of its use in the criminal process area, particularly its identification as a means of proof and the valuation of this proof by the magistrate. The hypotheses of the institutes understanding, as a phenomenon in the orbit of morals and as a legal reality are not mutually excluding, so that it is possible to delimitate the borders of rewarded delation in consonance with the ordinances of the former and of the rules of the latter. This paper proposes the thesis that rewarded delation, once its nature in criminal law is defined, requires the establishment of its ethical and procedural borders in order to comply with a State of Law. The conclusion of the paper is that rewarded delation should have a unified provision in the legal system, so as to guarantee legal coherence and safety in its application, as well as agreement with the norms that ensure due process of law, in spite of the institute representing a product of emergency lawmaking and of having ethical restrictions

ASSUNTO(S)

rewarded delation crime organizado -- brasil criminal organization prova criminal -- brasil mafia direito causes for penalty diminution perdão judicial perdao -- brasil organização criminosa máfia delação premiada judicial pardon causa de diminuição de pena devido processo legal -- brasil

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