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SILVA, Danielle Souza de Andrade e. The preliminary inquiry in delicts under original jurisdiction in higher Courts. 2009. 321 f. Thesis (Doctorate) – Faculdade de Direito, Universidade de São Paulo, São Paulo, 2009. The preliminary inquiry is one of the most important tasks in criminal prosecution. In delicts charged to agents with the prerogative of having original jurisdiction – process and judgment – in higher Courts, Law # 8,038/1990 deals with the processing of the cases, but does not regulate the proceeding of their respective investigatory phase. Although such prerogative in Criminal Law is an old institute in our legal system, there are no legal rules disciplining the procedure of the preliminary inquiry in these cases. Therefore, it is necessary to give the institute an specific treatment and adequate it to the constitutional rules, one that will assure legal security to the society and will follow the due process of law. The Brazilian Constitution of 1988 has installed the accusatory system in the criminal procedure, making clear distinction between accusation, defense and judgment functions, and expressly highlighting, for the first time, the guarantees of the due process of law and the presumption of innocence. In such system, the Judiciary is responsible for processing and judging cases, and may not intervene in the investigation of delicts, an administrative task designed for other state branches. This essay is about the preliminary inquiry in Brazilian Law; the guarantees applied; its juridical nature, functions, subjects and acts; its various existing modalities, situating the investigation involving the holders of the prerogative of being originally judged in higher Courts, differing interna corporis investigation from the others; the relations between the involved state agents; the role of the judge in the preliminary inquiry and the reserve of jurisdiction; the constitutional regime of publicity, the hypothesis of investigative secrecy and the peculiarities in its closure phase. By means of bibliographical and jurisprudence research, and also visitation of operating organisms in the investigation under analysis, the essay comes to the conclusion that the procedure adopted for criminal offenses under original jurisdiction in higher Courts is not sympathetic to the constitutional model, also bringing consequences from the point of view of the efficiency of the administrative phase, for it makes the procedure slower and bureaucratic. Finally, there are some procedural guidelines for the preliminary inquiry of criminal offenses subject to prosecution in collegiate bodies, with the objective of depuration of the Brazilian accusatory model. Among them are the definition of the administrative-police nature of the investigation; the constitution of special teams with knowledge regarding these special criminal inquiries in each sector of the police, the legal definition of judge of guarantees in the investigation, in courts with criminal jurisdiction, whose participation will be restricted to the incidents involving threats to fundamental rights; the separation of the judge of investigation from the judge of the process, abolishing the current rule of prevention, in order to preserve de impartiality of the judge; the course of the inquiry to be held directly between the judiciary police and the prosecutor; the rule being the publicity of the inquiry and the secrecy, the exception.

A investigação preliminar nos delitos de competência originária de tribunais