O Direito Pensa

Editorial

Vítor de Souza Ishikawa — 2024-07-19

The aim of this volume is centered on a joint effort by professors, students and
"practitioners" that covers the different charms and disenchantments of criminal
disciplines, from charm to disgust and from disgust to resistance. These feelings
intertwine and give color and content to any possible position when we approach Criminal
Law, Criminal Procedure, Criminology, Criminal Enforcement and Criminal Policy.
Understanding and elaborating them is a first step.
The published papers are based on this tripod: they deal with crime, the
exceptionally reprehensible and the state's response, the most aggressive and violent at the
state's disposal, and for this reason alone it enchants; they do not ignore this intrinsic
violence that is part of the very being of Criminal Law, exercised as a rule selectively and arbitrarily, and for this reason alone it disgusts; and because it enchants and disgusts, it
requires an effort to rationalize, to control, to build criteria that allow for security and
respect for human rights, and for all this it plays its part in the resistance that our scientific
work pushes by obligation. We hope that this special volume will be followed by many
more in this journal!
Editorial Board

ON THE PRINCIPLE OF UNIVERSALITY OF CRIMINAL LAW JURISDICTION IN INTERNATIONAL CRIMES

Julia Crubellate — 2024-07-19

The Brazilian criminal jurisdiction adopts, as a rule, the principle of territoriality, which is the precept that every crime committed in Brazil, and only there, must be judged based on the national laws. However, there are exceptions. The principle of universality of jurisdiction is one of these caveats. Using the deductive methodology, the present work intends to investigate the application of the universal jurisdiction of the criminal law in the trial of serious international crimes, such as genocide. It is concluded that although jurisdictional territoriality is the rule, the principle of universality under international law is gaining more space.

BILL N. 2.787/2019: proposal of an ecocide crime

Vítor de Souza Ishikawa — 2024-07-19

This article aims to analyze the proposal to enact a ecocide crime, as stated in Bill n. 2,787/2019. The methodology used was the bibliographic review of works and articles on the subject, the files related to the Bill n. 2,787/2019 and legislation, with emphasis on the Environmental Crimes Law (Law n. 9,605/1998), following a logical-deductive method. It began with a resumption of the history of the conceptual construction of “ecocide” and the functions assigned to it, in a descriptive and normative sense, at an international and national level. Next, we proceeded to the concrete examination of the Bill for the insertion of a criminal figure of "ecocide" to, finally, carry out a systematic analysis under the light of the criminal principles of guarantee of Criminal Law. It was concluded that Bill n. 2.787/2019 violates the principle of taxation and two legitimate alternatives were offered according to a proposal for legislation that is intended to be rational: ecocide as a criminal offense with a list of concretely described conducts and the creation of an increase in the offense of qualified pollution;

THE IMPORTANCE OF PERPETUATING GENETIC MATERIAL AS A TOOL IN THE INVESTIGATION OF SEXUAL CRIMES

Roberta Simões dos Santos — 2024-07-19

This research seeks to analyze the implications arising from the creation of the
National Bank of Genetic Profiles in Brazil, in its various aspects. It is based on facing the
consequences of the legislative changes made by Law No. 12,654/12, considering the
contributions of the Genetic Profile Database to society as a means of elucidating sexual
crimes. Classic methodological procedure based on bibliographical consultation, based on an
interdisciplinary perspective. The implementation of Genetic Profile Banks, aiming to
perpetuate the genetic material already collected, can strengthen and qualify the process of
elucidating cases of sexual crimes through criminal justice.

VIOLATIONS OF DUE LEGAL PROCESS DUE TO THE ABSENCE OF “MIRANDA RIGHTS”: POSITION OF THE SUPERIOR COURTS ON THE SUBJECT

Andressa Paula de Andrade — 2024-07-19

The present work aims to analyze the position of the Superior Courts of Brazil regarding the consequences for the criminal process due to the lack of information to those accused of practicing criminal offenses regarding their rights, in particular the right to silence provided for in the Brazilian legal system, set out in norms infra-constitutional, constitutional and conventional, at all stages of the process, including at the time of arrest or police approach, preserving the individual's right of non-self- incrimination known as "Miranda Notices", whose nomenclature originated in a case considered by the Supreme Court which culminated in the annulment of a process in which the right to silence was not guaranteed to the accused. The method used was the inductive approach using a literature review and research in judgments of the superior courts of Brazil, in order to verify whether the absence or insufficiency of the right to non-self-incrimination will cause damage to the continuation of the process under penalty of annulment of the evidence obtained. , leading to the annulment of the penalty imposed in case of conviction of the accused or investigated, as a result of the violation of the principle of due process of law.

The origins of military justice

Bruno Henrique de Moura — 2024-07-19

Solidified on hierarchy, discipline and traditions, the Armed Forces base their existence on the constitutive achievements of their history. The emergence of a specialized jurisdiction, in the various Western civilizations, reveals the markers of the relationship between the military and civil society, as well as the means of control over it. Understanding the relevance of Military Criminal Law is to adhere to its historical indications and rationalize how military legal institutions support the nation's internal and external defense. Through literature review and monographic methodology, the article recapitulates the origins of Brazilian Military Justice.

LAW AND PUNISHMENT IN ALBERT CAMUS’ “THE STRANGER”

Raul Rodrigues Kühl — 2024-07-19

This article aims to analyze the trial of the character Meusault in Albert Camus’ “The Stranger”, to comprehend how law and punishment are presented in this work, using the historiographical category of modernity’s law mythologies from Paolo Grossi. Through a critical-reflexive approach of the work, I dealt with bibliographical sources about the theme. As results, I found that the character’s posture towards his trial represents a critic not only to the right of punishment, but to the political ideas from modernity.

THE CRIME OF FRAUD IN BID-RIDDING OR ADMINISTRATIVE CONTRACTS IN ART. 337-L OF THE PENAL CODE: ANALYSIS OF ITS LEGAL OBJECTIVITY AND THE PUBLIC ADMINISTRATION AS A PASSIVE SUBJECT OF THE LEGAL GOOD OF CONSUMER RELATIONS

Anderson Burke — 2024-07-19

The crime of fraud in bid-rigging or administrative contract as stated in art. 337-L of the Penal Code, which updated the revoked art. 96 of Law 8,666/93, criminalizes five commissive conducts in the execution of the administrative contract, which happens in the context after the procedure bid-rigging process and, therefore, the nomenclature of the criminal type is erroneous, given that it can mislead interpreters into imagining that it punishes the conduct that meets the current nomenclature of “frustration of the competitive nature of the bid-rigging”, which was traditionally provided for in art. 89 of Law 8666/93 and which was referred to art. 337-F of the Penal Code, a crime popularly known as “tender fraud”. In the five sections of the crime, it should be noted that there are similarities with crimes against consumer relations, as stated in art. 7 of Law 8.137/90 and in the crimes of Law 8.078/90. Traditional doctrine understands that the crime of art. 337-L of the Penal Code mainly protects the legal good of the public administration in the execution of the administrative contract. Part of the administrative doctrine, although resistant to recognizing the public administration as a “consumer” for the purposes of the Consumer Protection Code, based on the premises analyzed in the present study, concludes that on certain occasions in which there is technical, scientific or factual vulnerabilities of the administration as the final recipient vis-à-vis the contracted party, the public administration can figure as a consumer for the purposes of the CDC and, when it comes to criminal purposes, it requires protection of the legal goods of consumer relations. Therefore, in addition to the traditional legal goods of public administration and free market (this depending on the specific case as discussed), the crime of fraud in bid-rigging or administrative contracts in article 337-L of the Penal Code, when technical, scientific or factual vulnerability is identified, the Administration, in a given specific case, figures as a consumer, and the crime aims to protect the legal good of the State's consumer relations in the execution of the administrative contract, concomitantly or not with the legal interest of the public administration.

THE USE OF FACIAL RECOGNITION IN BRAZILIAN PUBLIC SECURITY

Maria Eugênia Fachone Soares — 2024-07-19

Facial Recognition and surveillance technologies are increasingly being implemented nowadays, mainly, in public security areas. Despite its increasing use, in Brazil, so far, there is no regulation that can be applied to, considering the possibilities of error and discrimination rates. Therefore, violation of fundamental guarantees is present, even more when there is constitutional principles disrespect. For instance, it’s required to have a specific regulation about the subject involving new technologies. The themes discussed in this paper is going to talk about how it’s possible to solve this problem, by a bibliographical review, using articles, academic papers and reports on the topic.

EX LEGE PRISON: AN ANALYSIS OF ITS (IN)CONSTITUTIONALITY

Vitória Piffer Colombo — 2024-07-19

Due to several constitutional and procedure principles that are very important to the rule of law, preventive detention should be used exceptionally, and may be ordered only by the judge, in a reasoned manner, respecting the presumption of innocence. Law No. 13,964/2019 established two cases of mandatory detention, putting in doubt if those postulates were observed. Thus, this paper analyzes the compatibility of the new provisions with the Federal Constitution and other rules present in the Code of Criminal Procedure itself.