Da legitimidade para realização da investigação defensiva na fase pré-processual e o novo paradigma do inquérito policial no contexto de um processo penal constitucional

Abstract

The main objective of this research is to ascertain who holds the legitimacy to conduct Defensive Investigation during the pre-procedural (investigative) phase, with a focus on defensive investigations carried out within police inquiries, the most common form of preliminary investigation of criminal offenses. In this context, an analysis was conducted on how a preliminary investigation should align with fundamental rights, based on Luigi Ferrajoli's theory of Penal Garantism. Additionally, the research examined the new paradigm of police inquiries, which should be regarded as an instrument serving criminal prosecution to ensure justice, functioning impartially and seeking informational elements to support the statements of the defense, the prosecution, and even judicial decisions. The research concluded that preliminary investigations should be exclusively entrusted to the investigative police, while granting the power to request investigative measures to the Public Prosecutor's Office, the Public Defender's Office, and the defense attorney of the investigated party. Any disputes over dilatory investigative measures should be submitted to the decision of the Guarantees Judge.