Investigação criminal democrática: análise e releitura do inquérito policial frente às alterações trazidas pela lei 13.245/2016

Abstract

This work aims to present an analysis and a rereading of the police investigation, in particular, after the advent of the Law 13.245/2016, as the occurrence of the transmutation of certain procedural instruments can be noticed with the procedure of democratization of the Brazilian State, then having adaptations to a new constitutional reality. Therefore, the enquiring classification shows itself as wrong and over comeconsidering the occurrence of the adversarial principle and vast defense in the police investigation with mitigated character, though.The goal is to demonstrate that the analytical concept of inquiry has undergone a process of constitutional mutation, essential to the maintenance of this institute in the Democratic State of Law. Thus, in order to demonstrate the need for such re-reading, an analysis of the historical development of the police investigation was made, since the sanction of the Law n. 2.033/1871 and the Decree 4.824/1871, from the Criminal Processual Code until the edition of the Law 13.245/2016, as well as the correlated case law.It was found that most of the doctrinaires still externalize harmonious conceptions with the normative positivist current.Considering the importance of a correct understanding about the constitutionalization of this legal institute for a reliable application of the law that is supposed to be attentive to the anxieties of the effective justice, and also considering the emergence of the neoconstitutional movement linked to the post-positivist conceptions, it is necessary to reread the concept of police inquiry as a whole, especially the retrograde inquisitorial classification.From this point of view, a new perspective is proposed on the sources of principles, laws in general, doctrine, jurisprudence, precedents, international treaties, analogy and customs. In addition, the research methodology used was the bibliographicreview, which sought to identify the most relevant doctrines, jurisprudence and scientific works on the subject, with the work of the Police Deputy Henrique Hoffmann.