A PREJUDICIALIDADE À PRETENSÃO PUNITIVA DO ESTADO PELO MAU USO DO DIREITO AO SILÊNCIO

Abstract

The right to silence, as part of the legal maxim nemo tenetur se detegere, is one of the most relevant fundamental guarantees in criminal proceedings. However, when the guarantee of remaining silent is taken as a form of eluding the criminal prosecution (misuse of the institute), depending on the creativity of the lawyer – and the acceptance of the judge in using it –, the doors to impunity are opened. In other words, the guarantee ceases to fulfill its fundamental role and becomes, purely and simply, a factory of fake procedural nullities. Because of this, the present paper aims to contextualize the emergence of the right to remain silent and its current application, especially in regards to criminal drug trafficking proceedings that began with arrests in flagrante delicto during police stops, in order to demonstrate how the right to remain silent, in practice, has been misinterpreted in the higher courts. Having observed this phenomena, the precept of the search for truth in the process was discussed and the assessment of procedural nullities that resulted from the violation of the guarantee of the right to remain silent in real cases was addressed. The paper also sought to verify incidental issues that affect the right to silence, such as partial silence, for example. We also verified the close relationship between the misuse of the institute and impunity, even more so due to the lack of classification of the crime of perjury in Brazil.