A alteração do estatuto da ordem dos advogados do brasil pela lei 13.245/2016: uma análise à luz do garantismo integral acerca das consequencias no conjunto probatório produzido no inquérito

Abstract

This study analyzes Law 13.245 / 2016, which significantly changes the Statute of the Brazilian Bar Association. This change mainly affects the pre-procedural phase, since it makes the presence of the lawyer mandatory and, thus, changes its characteristics. In this sense, the positive effect of the insertion of the lawyer at this stage is not limited to a formal amendment, since the substantive right of defense and the right to be heard in the investigation has been recognized and has therefore considerable effects. However, although the presence of the lawyer is not enough to withdraw from the inquiry its inquisitive character, it is possible to affirm that it is capable of changing the value load of the probative set. This is because, there are two of the three elements of the Contradictory, in the pre-procedural phase, thus contradicting the whole logic of the need to reproduce evidence in court. In these terms, it concludes by using the probative set produced in the pre-procedural phase during the criminal action, provided that it is not the only means available for condemnation but may be used as a basis for summary or negative acquittal of authorship.