A legitimação para agir e a participação da vítima nos processos penais brasileiro e português: uma análise comparativa a partir dos recentes movimentos de reformas

Abstract

In this text, a short reflection on the legitimation to act in the Brazilian and Portuguese Law is made, in a comparative perspective of Michele Taruffo (2001), of the paradigm of the Democratic State of Law (1988), of the process as an adversarial procedure (FAZZALARI, 1994), of the discourse theory of Law (HABERMAS, 2003) and of model of the constitutional process (ANDOLINA; VIGNERA, 1997). Concerning the theoretical milestone mentioned, in particular, Taruffo’s comparativist method, guided by the recent procedural reforms, both in Brazil and in Portugal; it was possible to identify the current trend on the legitimation to act in harmony with democracy. To this end, the movements of recent reforms that occurred in Portugal and Brazil, with special emphasis on a comparison of procedural models lead by the cultural projects of each country, leaving for a second plan the specific rules of each jurisdiction. The specific aim of this study was to review the institute of the legitimation to act specifically on the role of the victim in the democratic criminal proceedings. Therefore, it was necessary to review the notion of “right to action”, here revived by the expression “right of access to the process” as an option of a more appropriate terminology to the paradigm of a democratic state of Law.