A divergência jurisprudencial quanto a possibilidade de desarquivar inquérito policial baseado em excludente de ilicitude

Abstract

The archiving of police inquest is an administrative step made when present special impeditive conditions to the filing of penal action (like circumstances that exclude the illegality), or when does not have enough elements for the accusation. However, if after the authorizing decision of the archiving arise new proofs that are capable of moving the criminal prosecution again, and even allow the filing of the major criminal lawsuit, appear the issue of the possibility of unarchive the police inquest. Specifically, the controversy of this question focuses on cases when the archiving was based in the presence of some circumstance that exclude the illegality, what makes different opinions in the doctrine and in the case law. So, based on this, it was structured this research, which used legal, doctrinaire and jurisprudential foundation, analyzing the differences on the subject. Furthermore, was used the dialectical method because the object of this research was treated from their contradiction, in other words, it was verified the various positions adopted as regards the ability to unarchive police investigation based on legal excuse, as well as the effects of the decision in such cases. So, initially it was presented the institution of police investigation to then discuss the archiving and specify their reasons. After that, it was analyzed the res judicata arising from the decision to archive and, consequently, if there is a possibility of reopening if new evidence be discovered. Finally, there was an analysis of the decisions handed down by the Supreme Court and the Superior Court of Justice on the subject in order to see how the issue has been effectively resolved by the higher courts. It was concluded that depending on the adopt position, there are different legal consequences, which is a serious harm for the legal certainty, since through the most recent decisions by the Supreme Court, the issue became even more controversial, creating two different positions. Therefore, this issue should be immediately decided in an effective and definitive manner so as not to generate a greater sense of impunity to the population and uncertainty to the investigated person.