Os sentidos teóricos da obrigatoriedade processual penal: uma análise crítica a partir da revista brasileira de ciências criminais

Abstract

This dissertation seeks to understand how the theoretical meanings attributed to the criminal procedural obligation are articulated in the publications of the Brazilian Journal of Criminal Sciences, problematizing them from a critical perspective based on the "Marginal Realism" of Eugênio Raúl Zaffaroni. This is an empirical and theoretical study that starts from a systematic analysis of the RBCCRIM publications, to identify the discourses on criminal procedural obligation conveyed in the academic environment and to understand the internal and external theoretical inconsistencies of the meanings that are attributed to this construct, as well as the projections of power and meta-legal functions that underlie it. As a conclusion, it was found that the discourses on obligation emphasize a focus on the active positions of criminal prosecution, to the detriment of normative hypotheses that would dismiss the need for investigation or criminal proceedings, or alternative solutions to the penal process. It was also verified that the dysfunctionality of the conceptual relationship established between the ideas of legality and obligation, the fragility of the characterization of the normative structure of obligation by the legal literature and the absence of theoretical reflection on this theme based on constitutional landmarks. Finally, the relationship of subordination established between obligation and incriminatory-sanctionary criminal norms was examined, relating it to theoretical-penal conceptions of a retributionist and social defense character, which imply a criminal policy of maximum realization of the state's punitive power, based on the criminalizing and penalizing agenda provided for by law.