Between deciding and advising: how the Brazilian Supreme Court case law deter an intermediate stage in the criminal procedure.

Abstract

In this article, I review the literature and examine Brazilian Supreme Court rulings on the grounds for the admission of indictments. I investigate how the Court adapted its discourses on the topic to give a homogeneous response to different ways of regulating the appraisal of the viability of criminal charges. The research shows that different regulatory efforts to impose argumentative burdens on the control of the viability of criminal proceedings are, in practice, ignored. When the Brazilian Supreme Court is asked about the lack of motivation in a concrete case, the decisions sometimes state that it is advisable, but, according to its precedents, unnecessary; sometimes they state that a minimum of motivation is necessary, and that vague and laconic expressions fulfill this need. The findings dialogues with recent empirical research on the subject and, especially, sheds light on something that cannot be naturalized: people have the right to know the reasons why the Judiciary considered it valid to subject them to criminal proceedings.

Keywords
qualitative research; judicial opinion; indictment appraisal; justification; case law