As medidas assecuratórias na cena contemporânea: desafios teóricos e práticos da constrição patrimonial nos maxiprocessos

Abstract

The Cosa Nostra investigation was initiated succeeding the efforts undertaken by the magistrate Giovanni Falcone and gained momentum with the turning state’s evidence of Tommaso Buscetta, who broke the omertà – the pact of silence existing among the mafia members - and reported the intricacies of the criminal organization to the Italian authorities. Hundreds of people and crimes were reported. One turning state’s evidence after another, the process gained a maximized nature, which led the Italian doctrine to use the term “mega-trial”. In the subsequent years, a worldwide concern with the fight against organized crime was raised - as the tentacles of Cosa Nostra had touched several countries around the world. Thereafter the Palermo Convention, the signatory States included in their legal orders means for investigating and combating the crimes arising from this reality. The need to enhance legislation and provide for special methods of collecting evidence, especially state’s evidence collaboration, was agreed upon. The concern about organized crime also affected Brazil: since the 1990s, several laws have addressed this issue in the country. The fight against organized/specialized crime – and the resulting ones – has, therefore, become a reality. Moreover, a necessity. Due to the complexity that the processes naturally harbour, they gained a maximized feature, which amplified the need for specialization of the State apparatus to deal with feats of this magnitude. Over the years, it has been possible to verify the deflagration of several criminal “Operations” by task forces imbued with the intention of dismantling organized crime in the country. Even in the face of legal specialization and state agents, the management of the mega-trials is not a simple assignment. A single process of these is capable of congesting a judicial body depending on its magnitude. In addition to all the discussions associated with the issue, it is worth highlighting the difficulty of managing patrimonial precautionary measures within the scope of processes of this nature. It is known that combating this type of crime depends greatly on the use of assurance measures. It is for no other reason that real precautionary measures are under focus in the contemporary criminal procedural field. However, a challenge stands out: how to ensure the granting of these operations without violating fundamental precepts, mainly in the face of legal regulations, such as the Brazilian one, which lacks due maturation on the subject? Confronted by the aforementioned research question, the present work intends to trace lines regarding the granting of security measures within the scope of mega-trials and the corresponding oversight of processes of this nature. Therefore, the purpose is to raise some questions about the mega-trials: historical background, development in Brazil and conceptualization, to then analyze the relevance of the use of security measures within the scope of these processes. Subsequently, it seeks to address some issues of the Brazilian precautionary procedure, to establish “de lege lata” e “de lege ferenda” solutions for the problem proposed. It will adopt the exploratory bibliographical methodology to reach the intended conclusion.