O Ministério Público entre a fotografia, o desenho e a moldura: uma análise do papel do Ministério Público no processo penal constitucional com zoom no cumprimento da vista do art. 610, caput do CPP no âmbito de apelações criminais julgadas pelo TJRS no ano de 2023

Abstract

This research, from the phenomenological-hermeneutic method, combined with the analytical-descriptive method, aimed to photograph how the fulfillment of the provisions in the caput of Article 610 of the Code of Criminal Procedure (CPP) occurs, which provides for a period of 5 (five) days for the brazilian Public Prosecutor's Office upon the arrival of criminal appeals in the second degree of jurisdiction, and to analyze its compatibility with constitutional criminal procedure, especially regarding the efficient observance of the guarantee of parity of arms. From the analysis of 85 criminal appeals judged by the 8 Criminal Chamber of the Court of Justice of Rio Grande do Sul, it was found that, applying the quantitative approach, on occasion of the aforementioned legal provision, a period of 15 days was granted for a "opinion," during which the brazilian Public Prosecuter submits written opinions on the judged matter, and that a considerable part of the manifestations was contrary to the defensive recourse hypotheses. In light of the identification of a non-legislated utilized space, the study sought, drawing from the legal and institutional history of the Public Prosecutor's Office, using the qualitative approach and the descriptive-qualitative method, possible justifications for this, that is, the traits that led to the photographed design. It was observed that there is a significant institutional effort to consolidate itself among the prominent State Institutions, as well as to establish and maintain insignias such as "guardian of the law" and "representative of society," in which considerable activity of institutional policy and the management of imaginaries, such as the vulnerability of civil society to legitimize itself in these roles, was identified. Additionally, other peculiarities of the State itself and the previously unstable characteristic of the functions exercised by prosecutors were noted to justify this "desire" for institutionalization and the constant demonstration of the need for the expansion of activities. From this, the study sought in the framework surrounding the practice, that is, in criminal procedural law, its compatibility and even the historical-legislative justifications for it, in which it was perceived that the identified prominence is largely due to an imaginary that the Public Prosecutor acts as an impartial guardian, making this practice, even though it allows less space for the accused person, often not even discussed or distrusted. Thus, it was established, from the doctrine explored, that the fact that the Public Prosecutor performs oversight by constitutional order does not attribute any impartiality to it, which is not possible within the scope of constitutional criminal procedure, because this exacerbates the already evident and legally relevant and recognized inequality between the prosecution and the accused person. Furthermore, it was found that even the institution itself does not expect a different performance from the members who act as legal opinion in the second degree, which demonstrates the need for a modification of the practice, in order to ensure the efficient observance of the parity of arms, under penalty of delegitimizing the criminal process in which the constitutional guarantees are not the determinants of the actions of procedural actors.