Análise da nulidade da ausência do membro do Ministério Público na audiência de instrução e julgamento: relativa ou absoluta?

Abstract

The present work aims to address the nature of the nullity resulting from the absence of the representative of the Public Prosecution Service in the hearing of the investigation and judgment. After exposing pertinent issues to the solution of the problem, such as differences between criminal procedural systems - inquisitorial, accusatory and mixed; constitutional penal principles - due to legal process, impartiality, accusatory, contradictory, equality of the parties and reasonable length of the process; besides the understanding of the system of nullities in Brazil, through the dialectical method, opposes positions found in doctrine in the criminal procedural scope and in the jurisprudence of the country. On the one hand, there are those who claim to be relative nullity and, on the other, absolute nullity. It shows that the theme is still not pacified in Brazil. From the perspective of a Democratic State of Right, it emphasizes the importance of the search for a fair and effective judgment in compliance with due process of law and fundamental rights and guarantees. It proposes that the member of the Public Prosecutor's Office should be notified in advance for such hearing as a criterion for determining the type of nullity to be judicially recognized, in case of harm to the party, always observing the rules of relative and absolute nullities for its characterization in the case.