Name: THAILA FERNANDES DA SILVA
Publication date: 27/07/2022
Examining board:
Name |
Role |
|---|---|
| RICARDO GUEIROS BERNARDES DIAS | Internal Examiner * |
Summary: The traditional distinction between civil and common law traditions has lost space as the legal systems began to admit both forms of simultaneous creation of law, as occurred in Brazil. With precedents, decisions in specific cases have the potential to reach large proportions, with the ability to apply in similar cases, impacting thousands of people, which in criminal matters can impact the sphere of freedom, demanding greater responsibility and adequacy to the principles that guard individual rights. On the sidelines of the theoretical development on the subject, the Criminal Procedure Code was amended in its text to only insert the preceding entry without making any considerations about what and how they are applied. This study aims dialogue with development that is directed to the civil process, for structuring an adequate incorporation of precedents in criminal matters. The philosophy of language is adopted as a premise, inserting precedents within the theory of law, interpretation, and the legal norm; and it is based on the Democratic State of Law, in which the criminal procedural law must address the limitation of state power, used as an instrument of guarantee to the individual, while the construction of any norm demands the necessary observance of the system of guarantees. Finally, a juriometric survey of the decisions of the Supreme Court is carried out in order to quantitatively identify the handling of positive articles in the CPC and CPP, from the beginning of the validity of each one of them, as a basis for their decisions in order to verify (i) if art. 315, §2, items V and VI has been considered by the STF in its judgments; (ii) whether the articles of the Code of Civil Procedure relating to the system of precedents have been referred to as the basis for decisions in criminal proceedings; (iii) whether the application of precedents in criminal proceedings has occurred in order to enforce rights and guarantees in criminal proceedings. From the data, it was possible to verify that there is no concern among STF ministers to refer to legal provisions on precedents in their decisions, as well as that the Court has not yet established a solid understanding on the matter, limiting itself to scattered and isolated mentions.
Keywords: Precedent. Criminal Procedure. Civil Procedure. Jurimetry.
