Limitations on habeas corpus by the defensive jurisprudence of the Federal Supreme Court

• Autor(a) principal: Franco Giacomini, João Matheus
• Data de Publicação: 2021
• Outros Autores: Alves de Arruda, Rejane
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direito & Paz
• Texto Completo: https://revista.unisal.br/lo/index.php/direitoepaz/article/view/1321

Habeas corpus, a constitutional right declared by the Federal Constitution and International Treaties, has been subject to limitations set by the jurisprudence of the Supreme Court. The purpose of this paper is to demonstrate the present restrictions to admissibility and processing of habeas corpus in the Federal Supreme Court due to recent legal precedents. To do so, its objectives are: To demonstrate the limitation originated from the legal precedent n. 691 of the Supreme Court, which impedes the motion which intends to overrule the denial of a habeas corpus in a preliminary injunction; to outline the need to exhaust higher court motions using interlocutory and special appeals according to high court regulations; to present the limitation to the writ of habeas corpus used in replacement of ordinary and extraordinary appeals, as well as interlocutory appeals and judicial reviews, due to a precedent set by Supreme Court Justice Marco Aurélio in 2012; to expose the imposition, by the First Panel, of a new habeas corpus writ to the Supreme Court upon a definitive ruling by inferior courts; to demonstrate the obstacle to the usage of the habeas corpus against singular decisions of a Justice or Panels of the Supreme Court, according to the legal precedent n. 606; and to analyze the limitations to habeas corpus decisions issued by force of law [ex officio]. Adopting the post-positivist paradigm, the research approach is dogmatic, as the legal system and its values are analyzed. Regarding its means, bibliographical and documentary research is conducted based on books, legal journals and papers, legislation, and jurisprudence. Since there is need for in-depth study of the topic, exploratory research is employed; finally, research is descriptive and explanatory, as it outlines its objects, as well as critically analyzes the precedents set by the Supreme Court on the matter, as well as the practical consequences regarding nature and speed of habeas corpus. Keywords: Restrictions to habeas corpus. Defensive jurisprudence. Fundamental rights. Due process of law.