Investigação Criminal pelo Ministério Público: Fundamentos e limites constitucionais

Abstract

The goal of the present work is to analyse the compatibility between the functions and nature of the public prosecution service and the practice of criminal investigation, according to the Brazilian criminal procedure model, and identify the constitutionally imposed limits to this practice. Established on the theoretical basis of Luigi Ferrajoli´s guarantism, the developed study applies the hypothetical-deductive method and, as a technique, the bibliographical and documental research, devoting special attention to the Brazilian's Supreme Court decisions pronounced since 1988 referring to the nominated clauses of jurisdictional reserve. This essay presents the principles and main characteristics of the accusatory, hybrid and inquisitive criminal procedure models, so that the criminal investigation can be studied, indicating its concept, its purpose, its addressees and its types. It discourses about the criminal investigation in Brazil, examining the role of the police and other agencies of the State and exposing the favorable and discordant arguments to the criminal investigation by the public prosecution service. After a study about the rights and fundamental guarantees incident on the criminal investigation, it's possible to establish the real duty of the Judge on that activity, confronting it with the function to be fulfilled by the public prosecutors. It is concluded to the possibility of the direct criminal investigation performed by the public prosecution service, being that attribution limited by the clauses of jurisdictional reserve and, substantially, by the principles of legality, efficiency, grounding, proportionality and natural prosecutor. Lastly, it is presented a summary of investigational acts and its execution by the public prosecution service, under the approach of the constitutional limits analysed before.