Da garantia da fundamentação no processo penal : uma análise crítica a partir da jurisprudência do Supremo Tribunal Federal

Abstract

This is a master’s thesis defended at the Postgraduate Program in Criminal Sciences of the School of Law of the Pontifical Catholic University of Rio Grande do Sul, related to the concentration area "Criminal System and Violence", and more specifically, to the line research project "Contemporary Legal-Criminal Systems", under the guidance of Prof. Dr. Augusto Jobim do Amaral and referring to his research group "Resignations of Brazilian criminal procedural authoritarianism". The purpose of this study is to study the rationale, which, in 1988, the motivation before a technical element of judicial decisions, received constitutional treatment, and high real fundamental procedural rule, similar to what happened in other countries. Such was the importance attached to this rule which was a consequence of restraint applied in case of violation: it’s nullity. However, this standard was not enough that the main problem were to be resolved: when a decision can be considered justified? The doctrine was not about unison, while the jurisprudence was dispersed. Thus, it was necessary to seek a normative parameter to try to find answers to this question. Under criminal procedural law, it was decided by his notion of constitutional instrumentality because the process would be the means of giving maximum efficiency guarantees the accused, among which the security chief motivation. Thus it would be necessary to review all the literature on the subject under this new approach, both in the constitutional sphere and technical, as well as re-examine, especially the theories found in the doctrine that established formulas for setting the lack of motivation. At the end, the study of the jurisprudence of the Supreme Court was necessary so that one could see the judicial understanding of the Court on this fundamental rule, in order to compare the adequacy and reception of the doctrine by the judiciary, always focusing on the specifics of the criminal procedure.