A impossibilidade do reconhecimento da coisa julgada extrajudicial no arquivamento da investigação criminal sob à nova sistemática da Lei nº 13.964/2019

Abstract

The archiving of the police inquiry has always been placed in the background by the legal literature, despite the high percentage of criminal investigations that have its outcome through this institute. With the adoption of the accusatory system in the 1988 Constitution, its systematics little changed, still with a strong inquisitorial bias, in which the criminal judge was responsible for the anomalous control of the principle of mandatory criminal action by the Public Ministry. However, with the enactment of Law No. 13.964 / 2019, there was a profound amendment to Article 28 of the Code of Criminal Procedure, removing the power of the magistrate to supervise in some way the condemnatory criminal action, the exclusive prerogative of the competent body of the Parquet. From the use of the hypothetical-deductive method, an in-depth analysis of the historical and procedural aspects, general and specific, of archiving, in its original model, was carried out. An ongoing act, an examination of its legal nature, the hypotheses of its occurrence, of Precedent No. 524 of the STF and the recognition of the possibility of the occurrence of the formal and material res judicata was carried out. Finally, a diagnosis was made on the one discussed above, but now under the new systematic of filing, concluding that it is impossible to recognize the administrative or extrajudicial res judicata, despite the recognition of the stability of the decision, especially due to the principle the legal security that governs the state bodies and their decisions, which will require some formality for the decision to unarchive.