Domínio da organização criminosa e ônus da prova

• Ano de defesa: 2023
• Autor(a) principal: Marangoni, Cíntia
• Orientador(a): Ponte, Antonio Carlos da
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Domínio da organização criminosa; Domínio do fato; Crime organizado; Ônus da prova; Princípio da proibição da proteção deficiente
• Palavras-chave em Inglês: Domain by organization; Domain of the fact; Organized crime; Burden of proof; Untermassverbot
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/40036

The purpose of this study is to demonstrate the relevance of adopting the theory of the domain of fact, including its domain of organization bias, in the context of combating criminal and business organizations, with a view to guaranteeing sufficient protection for fundamental rights, notably the right to public safety. To this end, a true evolution of the criminal dogmatics of the contest of agents is defended, in view of the development of contemporary criminality, increasingly organized and sophisticated, based on the principle of proportionality, in its aspect of the Untermassverbot. Still, with the same intention, this work will address the reflections on the burden of proof resulting from the adoption of the theory of the domain of the organization, together with some evidentiary instruments existing in the Brazilian legal system, in the fight against organized crime, mainly those foreseen in Law nº 12.850 /2013 (Organized Crime Law). Also noteworthy is the mention of the possibility of reversing the burden of proof, for certain crimes committed by organized crime, notably in the laundering of assets and capital, in accordance with the provisions of Law nº 9,613/1998, as well as in International Treaties and Conventions to which Brazil is a signatory. In this context, an exposition of practical cases was made, such as the paradigmatic judgment of the “Mensalão”, in which the theory of the domain of the fact was expressly adopted, as well as in several other recent judgments of the Brazilian Courts, citing a study of a specific case, involving the well-known “Cartel dos Cegonheiros” and the questioning as to the possibility or not of its eventual application. Thus, it is concluded that the expansion of criminality in postmodern society and the state's inefficiency in confronting organized crime, demonstrate the need not only for updated criminal and procedural instruments, but also for a new criminal dogmatic, allied to criminal policies contemporary - which is why the theory of the domain of fact, and its version of the theory of the domain of the organization, has been adopted by national jurisprudence and doctrine, in accordance with the Untermassverbot