O controle de constitucionalidade de leis penais no Brasil: graus de deferência ao legislador, parâmetros materiais e técnicas de decisão

• Autor(a) principal: Sousa Filho, Ademar Borges de
• Data de Publicação: 2019
• Outros Autores: [e-mail]
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/17280
• topic: Constitutional Law; Criminal Law; Judicial Review; Brazilian Supreme Court; Constitutionalization; Direito constitucional; Direito penal; Controle de constitucionalidade; Supremo Tribunal Federal; Constitucionalização; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO

Brazilian criminal policy has been built without considering the relevant information about the realities of the criminal justice system and has produced counterproductive results in the prevention of crime. All this at enormous cost to the fundamental rights of hundreds of thousands of Brazilians, who have been subjected to an unjust, cruel and inhumane criminal justice system. This framework of systematic violation of fundamental rights resulting from the development of criminal law in a manner deeply isolated from constitutional law and from other branches of the social sciences, cannot be immune to judicial review. In this context, this study aims to overcome the theoretical underdevelopment on the relation between criminal law and the Constitution and on the possibilities of intervention of the constitutional jurisdiction in the criminal field. The present work argued, firstly, that the improvement of the judicial review of criminal laws requires reducing the excessive degree of deference to the legislator in the criminal field and intensifying judicial review by the adoption of more rigorous tests of constitutionality. Therefore, the work proposed criteria for the more effective use of the proportionality test as a method to solve hard cases of judicial review of criminal laws. In addition, to deepen the process of “constitutionalization” of the criminal field, the study brought three main proposals. First, raising the degree of realization of the democratic principle in the way criminal laws are produced in the country, requiring the legislator to define the criminal policy based on secure empirical premises, clear objectives, perspectives of impact on the system, and public reasons. Second, the imposition of the prohibition of the use of additive sentences that result in the expansion of the state punitive power to fill unconstitutional legislative omissions. Third, the use of the constitutional jurisdiction to transform the prison (preventive detentions and prison sentences) in a measure last resort (ultima ratio), by two measures. On the one hand, by recognizing the idea of functional equivalents of criminal punishment and the right to punitive compensation because of the restrictions of rights borne by the individual at all stages of the criminal justice system. On the other, by the drastic reduction of temporary incarceration by means of the following measures: (i) the rigid control of the motivation of decisions that directly decree pre-trial detention; and (ii) the confrontation of the preventive measures with the result of a probable condemnation to assess its proportionality.