A supervisão judicial nas investigações criminais do tribunal de justiça do estado do Tocantins e a sua adequação por meio de políticas públicas legislativas

Abstract

This present work has as its central focus the institute of judicial supervision in criminal investigations within the Brazilian legal system, with a special focus on investigations involving individuals with privileged jurisdiction and the need for legislative regulation of this matter by the State of Tocantins. We analyze the evolution of criminal investigation in Brazil, which historically did not require judicial authorization for investigatory actions not covered by the reservation of jurisdiction, implying a lack of communication to the Judiciary before the filing of criminal charges. However, the Federal Supreme Court established the mandatory nature of judicial supervision, even for preliminary actions not covered by the reservation of jurisdiction, resulting in controversies and debates about the constitutionality of this procedure, leading some state Courts of Justice to regulate judicial supervision in their Internal Regulations and even the issuance of Constitutional Amendments to State Constitutions. It is worth noting that until the beginning of the 21st century, only judges required judicial supervision in cases of criminal investigations involving them. However, in 2007, with the mandatory imposition by the Federal Supreme Court in Petition 3.825-QO/MT, numerous debates arose regarding the rationale behind this decision, with some ministers arguing that if the Federal Constitution establishes the jurisdiction in the Supreme Court, activities related to judicial supervision should be controlled by the Court. Thus, to avoid disagreements among Supreme Court ministers, the Court issued Regimental Amendment No. 44, on June 2, 2011, granting abstractness to the previous understanding and making it part of the internal regulations of the Court. This amendment established that in cases of privileged jurisdiction, the initiation and closure of investigations must occur under the supervision of the Rapporteur Minister of the Supreme Court. In addition, the amendment introduced scenarios for the automatic closure of investigations. The regulations governing judicial supervision in investigations of individuals with privileged jurisdiction in any court must be in accordance with the constitutional definition of the accusatorial criminal process. This ensures respect for constitutional guarantees of adversarial proceedings and due process of law, which are fundamental to Brazilian society. Additional questions arise: is the extensive interpretation of Article 102 of the Federal Constitution legitimate? Is it possible to regulate the institute of judicial supervision through Internal Regulations or Constitutional Amendments, as proposed by the Federal Supreme Court? In our view, yes, there is a need for legislative regulation in the State of Tocantins to align the justice system with the jurisprudence of the Federal Supreme Court. However, the regulation of the institute of judicial supervision must be carefully crafted to avoid conflicts of jurisdiction with the Union, as the Federal Constitution grants the Union competence to legislate on criminal procedural matters (Article 22, Section I, of the 1988 Constitution). State regulations of the institute, whether through the Internal Regulations of State Courts of Justice or State Constitutions, raise questions about their constitutionality, as they may conflict with the jurisdictional norm of the Union and the Federal Constitution itself, as well as with the principles governing Brazilian criminal procedure. Therefore, this study aims to reflect on the regulation of the institute of judicial supervision in the State of Tocantins, taking into account constitutional limits, legislative competence, and the principles guiding criminal procedure in Brazil. Finally, we recommend a legislative policy to standardize within the State of Tocantins, through the State Legislative and/or the State Court of Justice, and ensure legal certainty for decisions issued by the honorable Court of Justice, thus achieving the desired social peace in legal relations.