A legitimação pelo contraditório no processo penal: para além de um silogismo dialético

Abstract

The current article is a study of the contradictory principle, starting from the fazzalarian concept of parties as the affected by the final provision. In this sense, the principle will be visited in the criminal procedure, which has a unique geometry characterized by an a priori inequality between parties: on one hand, the powerful state, on the other, the individual, as the sole holder of human rights. From this construction steams the premise that the legitimacy of the Prosecution derives from the norm, which drives one’s performance and set its limits. It’s bound to legality, which role is to ward off the State arbitrariness and authoritarianism. Differently, the performance of the defendant, who will likely be affected by the sentence. They are guarded by the contradictory principle, that cannot be reduced to a simple dialectical syllogism, but legitimates an effective participation. It is hypothesized that the contradictory principle in a Democratic state enable the defendant to act beyond the strict legality, enforcing one’s participation in criminal procedure. It is proposed a theoretical investigation, prioritizing content analysis, conforming a legal-dogmatic research, of understanding-propositive type. The study endues theoretical and practical relevance, aiming to highlight the democratic effectiveness of the contradictory principle.