Valoração progressiva da prova no processo penal brasileiro

Abstract

The present work was idealized with the purpose of evidencing that a progressive valoration of the proof exists in the Brazilian criminal process, whose intensity varies in the same proportion as the judge's cognitive powers. As it is known, the jurisdiction is one of the most visible faces of the democratic state of right, and this, for the attainment of its purposes, it claims a system that assures the absolute respect to the citizen's fundamental warranties, especially those relative to the criminal process, that links with one of the most important rights -the freedom- whose tutors presupposes the appropriate production and valoration of the probatory elements. The criminal judge is called to decide several incidents and phases of the process that demand the valoration of the conviction elements gathered. Most of such decisions implicates in serious limitations of the accused's freedom right, so that it is demanded the appropriate exercise of the cognition by the judge - compatible with the respective phase of the process - under the risk of serious violations to each guaranteed individual right. Because of that, the proposed desideratum was the attempt of systematizing the form by which the variation of the cognition happens and the intensity of the variation of the proof, inside what we call a criminal process. Guided by that concern, the work starts with the study of the general theory of the proof to identify and to point the principal characteristics of the probatory system adopted at the country. Afterwards, it approaches the proof as a subjective right of the parts, with the natural limitations of norms of the Federal Constitution and ordinary legislation. The procedure of valoration of the proof, as an intellectual and logical activity of the magistrate, is studied in an specific chapter. Considering that there is a larger incidence of certain proofs in the criminal processes, it was made an election of the main ones, treated by an specific approach about the relative peculiarities of each one of them. Finally, there was the demonstration that the judge's cognition, in the several phases, varies in the vertical plan (depth) and in the horizontal (extension), making possible the conclusion that a progressive process of valoration of the proof exists, which has its beginning when there's a deflagration of the criminal persecution and it increases, slowly, in the same measure that the process phases advance, until reaching the maximum valoration - in the absolution or condemnation sentence - with the full and exhausting cognition. Thera was also the conclusion that the improper use of the cognitive powers or incorrect variation of the proof (for more or less of that which is possible) it always generates some lesion type to the accused's rights