AS ORIGENS AUTORITÁRIAS DO CÓDIGO DE PROCESSO PENAL BRASILEIRO E SEUS REFLEXOS NO DIREITO DE DEFESA DO ACUSADO

Abstract

The Brazilian Criminal Procedure Code, having clear inspirations in Alfredo Rocco's Italian fascist code, has notably inquisitive devices that are reflected in the power that the criminal judge has throughout the criminal process. The authoritarian Brazilian context present in the Vargas Era, which infected the thinkers responsible for drafting the legislation, cannot be understood as something outdated, since many of the concepts of the time are still contemporary. Therefore, the structure of the current procedural legislation, with several possibilities of an ex-officio action by the judge, allowed the magistrate to practically become a procedural part. This criminal authoritarianism mainly affects the right of the accused who, many times, is faced with a deficient adversary system. But despite the influence of the Rocco Code, the authoritarian context and having articles that give the Criminal Procedure Code the face of an inquisitive system, the legislation was not effectively reformed. This is due to the illusion that the code was created without political interference and based on a scientific method, the technicist method, the fallacy that the Federal Constitution of 1988 established an accusatory system of process and the failure of the higher courts, including the Federal Supreme Court itself, “the guardian of the Constitution”, which complies with articles of dubious constitutionality. More than demonstrating the opinions raised here through a historical analysis, it will seek to attest, based on a study of the jurisprudence of the Superior Court of Justice and the Federal Supreme Court, as the criminal procedural authoritarianism was not only accepted in Brazil, but re-signified and reworked to stay current.