When accusing stands for punishment: Fiftieth anniversary of the conventional right of being properly accused

Abstract

This paper came from the purpose of articulating the conventional fundamentality of the right of being properly accused, qualified as a guarantee by art. 8.2 of the Inter-American Convention on Human Rights, with the punitive character of the accusatory claim developed in disagreement with the international and national normative frameworks. For this purpose, the analytical dichotomy of “accusing” and “punishing” was first segmented (1) in the investigation, on the one hand, of the (1.1) international and national normative frameworks that make up the right of being properly accused, with special emphasis on the Pact of San José of Costa Rica and the Federal Constitution of 1988; on the other, on (1.2) the most concrete marks that outline the dogmatic profile of the judicial control of the accusatory pretension in Brazilian criminal procedural law. In the second part (2), the narrative acquires more pragmatic traits tending to unfold the explanatory potential of the effective punishment implemented by the Judiciary, emphasizing (2.1) the superior epistemological attributes of the contrast between the theoretical premises of the first part with the analysis of concrete cases, (2.2) highlighting the example of criminal liability that is commonly attributed to public managers according to an objective pattern.