COMPULSORY APPEARANCE OF INVESTIGATED INDIVIDUALS OR DEFENDANTS FOR INTERROGATION: AN ANALYSIS OF ADPFS 395 AND 444

Abstract

This study addresses the constitutionality of coercive questioning of investigated individuals or defendants for interrogation in Brazil. It focuses on Arguições de Descumprimento de Preceito Fundamental (ADPF) No. 395 and No. 444, jointly judged by the Supreme Federal Court (STF). The research examines the changes and interpretations of Article 260 of the Code of Criminal Procedure in light of the 1988 Federal Constitution, considering relevant doctrinal and jurisprudential positions. The "Lava Jato" Operation is analyzed as a backdrop for the debate, highlighting the questioning of investigative methods and the coercive questioning in the case, which served as a paradigm for the discussion on the constitutionality of the measure. The work discusses the fundamental principles affected by coercive questioning, such as the right against self-incrimination (nemo tenetur se detegere),the right to silence, the presumption of non-guilt, human dignity, and freedom of movement. Furthermore, it explores the diverging decisions of the Supreme Federal Court (STF) itself and the Superior Court of Justice (STJ) prior to the ADPF judgments.
Finally, the research is based on the broad majority of Brazilian legal doctrine, which holds that coercive questioning for interrogation is not permissible, with exceptions only for specific cases such as criminal identification, and concludes that the measure is incompatible with the fundamental rights and constitutional guarantees currently in force.