Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

Sacramental secrecy raises major discussions about the violation of professional secrecy, a conduct typified by art. 154 of the Brazilian Penal Code, due to the absolute character of its inviolability, for catholic doctrine, and the hypothesis of justification, exceptions elaborated by the Brazilian criminal doctrine. The main purpose of this article is to analyze the inviolability of sacramental secrecy, and whether this nature persists, even with the incidence of an exclusion of illegality or consent from the penitent. The methodology undertaken, based on a bibliographic survey that considered both catholic and legal norms, as well as the Brazilian criminal doctrine, allowed to identify that the duty to protect professional secrecy is absolute, in the case of confessors priests, regardless of the content of the confession given by the penitent or their consent to the reveal, as they owe obedience to lay and canon law, which, in their provisions, establish normative guarantees both to the free exercise of religious ministry, and to the freedom and intimacy of the confidant in the act of exposing their sins exempt from any punishment for information given via confession.

The present work seeks to answer the following question: in Portugal, does the mutual recognition regime cover a request for judicial cooperation, from another Member State of the European Union, based on non-conviction based confiscation ?. After a brief analysis of the instruments of forfeiture (criminal) adopted by Portugal (classic forfeiture and extended forfeiture), non-conviction based forms of forfeiture (of a civil nature and of criminal nature) and models of judicial cooperation in Europe, concludes that the mutual recognition model nowadays covers both the classic and extended forfeiture, but not any of the non-conviction-based forms of forfeiture - civil or in criminal prosecution. Thus, in the end, we conclude that the question that motivated the present work should be answered negatively.

Under the dual sovereignty doctrine the Supreme Court has accepted that different sovereigns may prosecute an individual for the same facts without violating the double jeopardy clause if the act of the individual infringed the laws of each sovereignty. This article aims to analyze the evolution of the dual sovereignty doctrine in the case law of the Supreme Court of the United States. Although the doctrine has been highly criticized by scholars, the Supreme Court has persistently upheld it. . Besides, the article addresses the safeguards that currently exist against eventual abuses of the dual sovereignty doctrine, such as the “sham exception” and the “Petite Policy”. Finally, since the previous safeguards have been considered insufficient, the contribution briefly explores the possibility of applying the Eighth Amendment as an additional protection against eventual abuses committed under the dual sovereignty doctrine.  

This article aims to critically analyze the potential negative influences of the use of new technologies in the control and punishment system. Given the amount of tools currently managed, both by governments and the private sector, we opted for a panoramic analysis, initially proposing a kind of possible scenario for the dynamics of the investigation process. The central problem with which we are concerned is the expansion of state and private intervention in individual freedoms, which is reflected in the restriction of procedural guarantees, directly affecting the dignity of the human person, even if it argues the need for a parity between the accusation and defense. Starting from a punctual bibliographic review on the use of machines with artificial intelligence in research, articulating literature located between technology and law, based mainly on the hypothetical deductive method, we conclude not by the need to expand, but to limit, in practically all aspects, the use of artificial intelligence machines and the dissemination of potential criminal investigators.

The present article addresses aspects of eyewitness identification in Brazil and the United States, as well as some of the factors that imply the fallibility of testimony. The main purpose of the research is to understand how does each, Brazil and the United States, treat testimonial evidence? What are some of the factors the influence the fallibility of the testimony? Finally, does the non-observance of the legal criteria in the article 226 of the Brazilian Criminal Procedure Code reinforce the Labeling Approach and criminal selectivity? The methodology applied in the research consists in literature review and the analysis of some judicial cases in which eyewitness identification was used as evidence. The specific goals of the study were to analyze the Brazilian and North American doctrinal understanding of eyewitness identification; examine how the Brazilian courts addresses the issue; research the various factors that may influence the identification; and, finally, discuss about the criminal selectivity that can be reinforced by the non-observance of the legal criteria for eyewitness identification. One can conclude that the article 226 of the Criminal Procedure Code, even though it lacks some update, should be applied in its entirety in order to avoid the influence of factors such as false memories and issues involving cross racial identification, weapon effect, among others. Respecting legal criteria is also capable to avoid the strengthening of criminal selectivity and the Labeling Approach.

The “Lava Jato Operation” has maximized features and cooperation agreement has been used as the primary instrument in evidence production. From this context, the following problem arises: Is there an intrinsic relationship between maxiprocesses and cooperation agreement that shifts the process information center from the procedural instructional to the preliminary investigation on “Lava Jato Operation”? The initial hypothesis is that cooperation agreement is a hallmark of maxiprocesses, and the factual information that forms the judgment of the judge is produced during the preliminary investigation. The research was conducted by the deductive method, at a substantially exploratory and partially descriptive level, from bibliographic sources especially about maxiprocesses and cooperation agreement, as well as empirical research from documentary sources of two major judicial processes that make up the police-investigative complex / procedural-court which is “Lava Jato Operation”.

Act N. 13.964/2019, called the “Anti-Crime Package”, regulated the decriminalizing institute of the “Criminal Non-Prosecution Agreement”. With the legislation on the legal benefit in force, arise a great controversy in the national legal scene about the legal nature of the new institute and about the possibility of judicial control of the refusal of the Ministry for Public Affairs to offer it. For this reason, the purpose of this scientific article is to analyze, based on deductive, bibliographic and legislative research, the legal nature of the “Criminal Non-Prosecution Agreement” and on the possibility of judicial control over the refusal of the Ministry for Public Affairs to propose to the investigated such a benefit, in the light of the theory of fundamental rights. To conclude, in the end, that the “Criminal Non-Prosecution Agreement” is the subjective right of the investigated person and that the Judiciary can control the legality of the act of refusing the benefit by the Public Ministry, granting it if the legal requirements are fulfilled.

A “judge of guarantees” is a magistrate who acts only in the investigation phase, assessing the legality of the acts and deciding personal and real precautionary measures. Its adoption seeks to avoid psychological contamination of the magistrate, who will judge an eventual process. Introduced in Brazil by Law 13.964/2019, it is being challenged in four direct actions of unconstitutionality. In a preliminary decision, minister Fux accepted the intention to suspend the rules included in the Code of Criminal Procedure, for an indefinite period. Among them, art. 3º-D, which proposes the creation of a system of rotation of magistrates in the counties where only one judge works, as a solution to make the presence of the “judge of guarantees” feasible in the interior of the country. The central argument for this decision was the undue interference of the Legislative Power in the budgetary autonomy and self-management of the Judiciary, added, both to the high cost of hiring new magistrates, prosecutors, police officers and public defenders, as well as the routine expenses with daily physical displacement of these professionals. This article aims to present the adoption of the electronic police inquiry as a mitigation for the costs of implantation of the “judge of guarantees” in Brazil, neutralizing the discussion of the constitutionality of art. 3rd-D in the Federal Supreme Court.

In the Unites States the existence of statutes that allow to declare forfeiture of the property used in certain prohibited ways in civil proceedings without the general safeguards of criminal law is an extended legal practice. This parallel law enforcement system, however, has raised several constitutional discussions. One of these debates concerns the compatibility of the parallel system with the double jeopardy clause: does the double jeopardy clause bar the government from bringing a civil forfeiture proceeding against a defendant that has previously been convicted in a criminal court for the same offence? The aim of the present article is studying the evolution of the case law of the Supreme Court of the United States on the constitutionality of parallel civil forfeiture proceedings and criminal prosecutions under the double jeopardy clause, analysing the current state of the jurisprudence and its possible further developments. 

Police investigations take place without rules that guarantee the right of defense. However, the evidence gathered in the investigation inevitably influences future criminal action. As a result, problems occur during the investigative process, which lead to power imbalances between the prosecution and the defense.  What’s more, police investigations are gaining more importance than the criminal action itself inasmuch as they do not obey time limits. In addition, these investigations become excessively complex and tend toward abusive practices and entangled police operations, that not only serve the prosecution exclusively, but also influence the future of the criminal action.  If regulatory measures are delayed and the legislative branch does not move ahead with changes to the legal framework, the judicial system should adopt practices to curb the imbalance between the prosecution and the defense that results from flawed investigations, which are not in line with the criminal system or with the Brazilian Federal Constitution. This study suggests possible solutions to address this problem.