A possibilidade da aplicação das garantias processuais penais nos Processos Administrativos Disciplinares: análise sob a perspectiva das decisões do Tribunal de Ética e Disciplina da OAB

Abstract

The purpose of this paper is to discuss the possibility of applying the criminal procedural guarantees to disciplinary administrative process, with special focus on the cases of the Court of Ethics and Discipline of the Brazilian Bar Association. Furthermore, it uses the deduction as the approach method and the bibliographic research, through the review of theses, judicial and administrative decisions. To achieve its objective, the starting point will be the study of Sanctioning Administrative Law, detailing what are the administrative powers involved, as well as how the disciplinary process is developed and its main characteristics. Then, the similar aspects between Criminal Procedural Law and Sanctioning Administrative Law will be analyzed, an opportunity in which the transposition of the principles of typicality, culpability, individualization of the penalty and the presumption of non-culpability of an area to the other will also be analyzed. Finally, it will be researched how the guarantees are applied in the Court of Ethics and Discipline of the Brazilian Bar Association, bringing decisions handed down that were based on these institutes, examining them. It is concluded that, although it is possible to use these prerogatives, there is still a need for maturity in their handling.