A tutela penal da advocacia

Abstract

This thesis brings up the theme of the Criminal Protection of Advocacy, analyzing the need and usefulness of a new criminal type for the protection of professional prerogatives, corroborating with everything that exists in domestic and international law on this subject. This is due to a growing concern about the increase in cases of violations of the prerogatives of the legal profession. The central problem of this study is the insufficiency of the current criminal legislation to effectively protect the practice of law, considering the constant infractions that lawyers face while performing their duties. The thesis proposes the analysis of the new specific criminal type in the article 7 B of the Statute of Advocacy and the OAB that contemplates the violation of professional prerogatives with criminal offense, aiming to ensure full respect for the right to advocate. The work focuses on the analysis and definition of professional prerogatives, emphasizing the importance of their protection for the proper functioning of the justice system and for the defense of citizens' rights. The thesis is based on the understanding that prerogatives are not privileges of lawyers, but necessary guarantees for the independent exercise of the profession and, consequently, for the maintenance of a rule of law. The lack of an adequate criminal response to violations of these guarantees compromises the quality of legal defense and weakens the legal profession as an institution essential to justice. The methodology used was a bibliographic review of the protective norms in force of domestic law, in the Federal Constitution itself, Infra-constitutional Laws, Decrees and Provisions of OAB, as well as international norms and cases of jurisprudence that deal with violations of prerogatives. The results showed that, although the Statute of Advocacy and of OAB, CF and other norms establish guidelines for the protection of prerogatives, there is a legal vacuum when it comes to specific criminal measures to adequately punish such violations, as well as to regulate conflicts arising from Defensive Investigation. The analysis showed that the Brazilian legal system lacks penal provisions that effectively ensure respect for the rights of lawyers, preventing many abusive situations from receiving proper punishment. Even with considerations of legislative techniques, this criminal type comes to help this protective system of the legal professionals’ performance, and would be a necessary measure to reinforce the protection of the practice of law, providing greater legal safety for professionals and ensuring that their functions can be performed without undue constraints