Em defesa das regras do jogo: a importância do processo penal nas democracias modernas a partir do conceito bobbiano de democracia

Abstract

The theme chosen for this research is the importance of criminal procedure in modern democracies based on the Bobbian definition of democracy. The research problem is fixed in order to demonstrate the importance of a criminal procedure system for modern democracies and, thus, to investigate to what extent the existence of criminal procedure rules is important for the guarantee of democracy based on the thought of Norberto Bobbio. To this end, it is crucial to understand that the criminal procedure is not reduced to a legal means for the State to apply penalties to those who violate the social contract and engage in conducts typified as crimes, but rather it is an instrument to guarantee the freedom of all citizens in the face of the power to punish. Therefore, the general objective of the research is to verify to what extent the criminal procedure, given its function of guaranteeing freedom, is necessary for democracy, according to what Norberto Bobbio understands by democracy. Specifically, in order to meet the general objective in relation to the problem, we carried out a philosophical approach on the formation of the State, as well as a reconstruction of the fundamentals on the need for the procedure for the law, identifying the specific function of the criminal procedure, as well as defining what democracy means for the Italian philosopher, so as to indicate, in the end, in an intertwining of themes, the importance of guaranteeing the criminal procedure for democracy. In the academic-scientific aspect, this research is justified because it is essential to know and deepen the study of criminal procedure, not from a purely legal perspective, but from its roots in political philosophy and law, with the aim of giving greater attention to this instrument of law, which is very dear to democracies and States of law, given its importance in the protection of individual freedoms and rights. The social relevance of the theme lies in the need to understand that the criminal procedure is a fundamental guarantee for individuals within a democratic regime and cannot have its rules violated under any pretext, however noble it may be. Eliminating rights and guarantees or disrespecting the democratic rules of criminal procedure, in addition to being an assault on Human Rights, is also an assault on democracy. The methodology used was qualitative research through bibliographic research. Thus, from the point of view of Norberto Bobbio’s production, more specifically in the works General Theory of Politics, Liberalism and Democracy, The Future of Democracy and The Age of Rights, we conclude that democracy serves to neutralize power and oppose authoritarian States, and that, therefore, the criminal procedure, with its rules, is an instrument of democracy based on this definition of democracy by Norberto Bobbio.