The adversarial structure of the criminal investigation: Analisys after the law N. 13.964/2019

Abstract

Objective: This paper recognizes the adversarial structure of the criminal investigation on the Law 13.964/2019, supports its constitutionality and clarify possible hermeneutical antinomies. Methodology: It uses the deductive and analytical legal hermeneutic methodology and the technic of systematic interpretation, using the theory of the adversarial system. Results: It recognizes three relevant aspects on the Law reform: (i) the judge of guarantees; (ii) the interdiction of judicial control of the decision of closing the investigation; and (iii) the interdiction of judicial initiative for the new plea bargaining. It refutes the arguments of unconstitutionality used in a preliminary decision of the Brazilian Supreme Court. Contributions: The interdiction of judicial ex officio initiative during the criminal investigation raises his objective impartiality. The prosecution office is the manager of the criminal investigation, closing internally the investigation and celebrating outside court the plea bargaining. Both the inquired person and the victim have new rights. The paper indicates topics of necessary hermeneutical adjustment.