The absence of the Burden to the Public Prosecution and the abuse of the right to start a criminal procedure as a tragegy of the commons

Abstract

This article, based on the recognition of a crisis in the Brazilian criminal justice system (which is costly and unable to produce the expected results), discusses as one of the elements of this crises the lack of broader and more efficient instruments to discourage the filing of criminal lawsuits. To this end, it points out elements that give signs of the overloading of the criminal justice system, which is demonstrated by the large number of cases that are processed and their recognized delay. The notion of efficiency is discussed based on the Kaldor-Hicks logic and the notion of “tragedy of the commons” to identify how the submission of many criminal cases to the justice system is a factor of inefficiency. The text arrives at the central conclusion that the excessive (because irrational) use of the criminal justice system by the Public Prosecutor's Office generates externalities that cannot be efficiently compensated by the process. Therefore, mechanisms to discourage large-scale demanders in the criminal area, some of which are highlighted in conclusive considerations, must be considered and used, under penalty of perpetuating the tragedy of the commons.