[vc_row el_id=”post”][vc_column width=”2/3″ el_class=”sideLeftPost”][vc_raw_html el_id=”postImgDestaque”]JTNDZGl2JTIwY2xhc3MlM0QlMjJpbnNlcnRJbnNpZGUlMjIlM0UlM0MlMkZkaXYlM0U=[/vc_raw_html][vc_column_text]IDP professors Gustavo Mascarenhas, Vinicius Vasconcellos, Rafael Ferreira, and Mariana Madera are columnists for Conjur. Check out their first article:
Understanding Habeas Corpus is essential for navigating criminal jurisprudence in Brazil.
Criminal law is constantly adapting to society, seeking to combine the science it produces with the varying currents of thought throughout history surrounding its main theme: freedom. It can be argued that the tension between protecting individual liberties and the pursuit of crime reduction is a pendulum-like movement in social relations and perceptions. Over time, the predominance in social choices alternates between greater concessions and relativizations of rights and guarantees, or more rigorous protection.
O habeas corpus This also fits into this oscillatory movement. In Brazil, since the First Republic, with the promulgation of the 1891 Constitution, the history of criminal jurisdiction has been intertwined with that of... habeas corpusAt that time, the Supreme Court established itself as the highest court in the Brazilian judiciary. The idea, embraced by legislators at the time, originated with Rui Barbosa, based on the American model of... judicial review, According to which the Supreme Court's strong jurisprudence has binding power over lower courts, establishing a diffuse control of constitutionality. Announcing, topologically, the relevance of this extraordinary remedy, the 1988 Federal Constitution allocated the habeas within the framework of fundamental rights, defining the guarantee that “it will be granted habeas corpus Whenever someone suffers or feels threatened with suffering violence or coercion against their freedom of movement, due to illegality or abuse of power.In this context, legal actions have been instrumental in important advances in jurisprudence, paving a civilizing path aimed at preserving individual rights.
The Brazilian Supreme Court (STF), especially since the early years of the 21st century, has achieved remarkable prominence in national public life. Its justices, whose faces were previously unknown to the general public, have become familiar faces in Brazilian homes; their decisions are subject to scrutiny by experts and ordinary citizens alike, within a vast and unequal network of constitutional interpreters. At the same time, academic investigations and research have multiplied, aiming, with varying degrees of success, to expose its contradictions, praise its achievements, or warn of what some consider to be an expansive performance. It is necessary, however, to understand the Supreme Court and interpret its decisions.
Returning to the conclusion reached by Justice Carmen Lúcia during the judgment of HC 152.752 on March 22, 2018, it can be stated that the history of the Supreme Court is intertwined with the history of the treatment given, over more than 100 years, to... habeas corpusIn the current scenario, to know it is to know the Court; to underestimate it is to diminish the role of constitutional justice. The importance and indispensability of habeas corpus This is evident in the structuring of a criminal justice system. Moreover, it requires a procedural criminal law framework that conforms to the protection of human rights, necessary for a country that intends to consolidate itself as a democratic state governed by the rule of law.
Consider, for example, the case of imprisonment after a second instance ruling: until the judgment of declaratory actions no. 43, 44, and 54, when the Supreme Court established the unconstitutionality of the provisional execution of the sentence before the final judgment of the conviction. The issue was constantly addressed and debated in... habeas corpus. In the petition no. 69.964, with Justice Ilmar Galvão as rapporteur, judged on December 18, 1992, the Court concluded that provisional execution of the sentence was possible, with Justices Sepúlveda Pertence and Marco Aurélio dissenting. habeas In case no. 84.078, with Justice Eros Grau as rapporteur, the Full Court, on February 5, 2009, reviewed the precedent, considering the early execution of the sentence incompatible with the constitutional text. The jurisprudential pendulum continued in habeas corpus No. 126.292, rapporteur Justice Teori Zavascki, when the Court, on September 2, 2016, with a new composition, once again recognized the viability of executing the sentence after the exhaustion of ordinary legal remedies. The controversy only ended (up to the present moment) with the joint judgment, concluded on November 7th, of the aforementioned ADCs.
There are several other prominent themes that are the subject of important discussions in the revelatory processes of habeas corpusIn procedural and substantive terms, this includes issues such as preventive detention, drug-related matters, the principle of insignificance, sentencing guidelines, house arrest for pregnant women and mothers with children under 12, prescription, jury trials, and the right to remain silent.
In practice, any case can reach the Supreme Federal Court through successive and staggered petitions. The data shows a marked increase in the number of... habeas...as well as a significant percentage of concessions, although decreasing over the years:
The scenario suggests two findings: (i) the habeas corpus (i) it is a fundamental and essential mechanism for accessing the Supreme Federal Court, which highlights its importance for consolidating the criminal jurisprudence of the highest Brazilian court; (ii) it is necessary and urgent to understand the flows and decision-making landscape of the Court in order to consider ways to rationalize the system – which is essential to optimize the performance of the STF and ensure an equal and balanced application of its jurisprudence.
Reading the decisions, whether made by a single judge or a panel of judges, provides a good clue as to how the justices have been dealing with this volume of petitions. For example, a tendency towards the abstraction of constitutional review can be observed in... habeas corpus, establishing understandings to set a precedent that can be applied not only to the specific case under judgment (which would be the rule in habeas), but to a larger number of cases. The aim is for the established precedent to be replicated by lower courts or even by individual judges.
Consider the case of Habeas Corpus No. 127.900, rapporteur Justice Dias Toffoli, in which the Full Court established guidelines regarding the application of the rule set forth in Article 400 of the Code of Criminal Procedure, from the publication of the minutes of that judgment, to all criminal proceedings governed by special legislation, applying only to those criminal actions whose investigation had not yet been concluded. In another example, the establishment of a legal precedent and possible modulation of effects to the decision in Habeas Corpus 166.373, rapporteur Justice Edson Fachin, regarding the order of final arguments in cases of plea bargaining, is currently under discussion.
On some occasions, the decision was made in habeas corpus This is consolidated with the issuance of a Binding Precedent – an important mechanism in establishing strong case law.. The trial of habeas corpus Case No. 89.429, with Justice Carmen Lúcia as rapporteur, and Case No. 91.952, with Justice Marco Aurélio as rapporteur, gave rise to Binding Precedent No. 11, of the habeas No. 81.611, rapporteur Justice Sepúlveda Pertence, to decision No. 24. The need for comprehensive decisions led the Second Panel to grant the first. habeas corpus collective, number 143.641, rapporteur Minister Ricardo Lewandowski, all pointing towards a broadening of the scope of decisions taken by the STF in habeas corpus.
Understanding the Court's position has naturally become a reality imposed on all legal and criminal science practitioners. This means that a good petitioner, in addition to presenting a concise petition objectively indicating the violation of liberty suffered, must seek to demonstrate either that the illegality under examination has already been analyzed by the Court and there is a disregard for the Supreme Court's jurisprudence, or that the Court must, based on indications of evolving understandings among the justices or a new configuration of the Chambers or the Plenary, re-examine the issue, or even demonstrate that it is a new object of analysis, such as that established by legislative change.
Therefore, we increasingly need ways to disseminate and consolidate the positions of the Supreme Federal Court with regard to habeas corpus. In this sense, this weekly column will be a space to present, analyze, critique, and discuss data, decisions, and topics relevant to... habeas corpus, Especially at the Supreme Federal Court (STF). Let's do this together!
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