Criminal defense

right or guarantee

Authors

  • Maria Thereza Rocha de Assis Moura Universidade de São Paulo, USP, Brasil image/svg+xml
  • Cleunice A. Valentim Bastos Universidade de São Paulo, USP, Brasil image/svg+xml

Keywords:

Criminal defense, Fundamental rights, Constitutional guarantees, Broad defense, Technical defense

Abstract

The article examines criminal defense as either a right or a guarantee, given the opposition between ius libertatis and ius puniendi. It distinguishes the concept of rights, as goods and advantages conferred by the norm, from that of guarantees, as instruments securing the exercise and enjoyment of those rights. Defense is analyzed in its common and legal sense, its legal nature, its classification into broad and strict, subjective and objective, technical defense and self-defense, as well as its content, divided into procedural defense and defense on the merits. The limits to the right of defense and the distinction between lawful and unlawful defense are also examined. It is concluded that criminal defense requires a dualistic composition between self-defense and technical defense, for the protection of the accused's liberty and the guarantee of due process.

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Author Biographies

Maria Thereza Rocha de Assis Moura, Universidade de São Paulo, USP, Brasil

Advogada em São Paulo, Mestre e Doutoranda em Direito Processual Penal da USP.

Cleunice A. Valentim Bastos, Universidade de São Paulo, USP, Brasil

Advogada em São Paulo, Mestranda em Direito Processual Penal da USP.

References

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Published

1993-10-01

How to Cite

MOURA, Maria Thereza Rocha de Assis; BASTOS, Cleunice A. Valentim. Criminal defense: right or guarantee. Brazilian Journal of Criminal Science, São Paulo, v. 4, n. 4, p. 110–125, 1993. Disponível em: https://publicacoes.ibccrim.org.br/index.php/RBCCRIM/article/view/3274. Acesso em: 20 oct. 2026.
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