The Miseries of Collective Habeas Corpus
Name: PEDRO PESSOA TEMER
Publication date: 19/09/2023
Examining board:
Name |
Role |
|---|---|
| HERMES ZANETI JUNIOR | Advisor |
Summary: Thistext aims to study the Collective Habeas Corpus (or, as some mayprefer, Habeas Class Action) from a procedural perspective. In the first chapter,starting from premises about mass society and the H abeas C orpus , it wasestablished basic concepts for its analysis. In the second chapter, it wasresearched the interaction difficult ies between the branches of collective andcriminal process, including the existing interpenetration between civil and criminalproceedings. A distinction was made between the nature of the collective criminalprocess, when it is punitive (with restrictions), and the non punitive nature (moreaccepted in the collective perspective ), among which the focus of the research,the Collective Habeas Corpus, stands out. The use of collective seizure warrantswas studied (counterpoint to the acceptance of the Collectiv e HC ) and, due to itsrelevance, measures within I nq 4.879/DF were examined. In the third chapter, itwas tried to systematize the position of the Supreme Federal Court (STF) andSuperior Court of Justice (STJ) regarding the Collective HC before the judgme ntof the HC number 143.641/SP, in 2018, with case studies delimitation andovercoming the ( problem of the " of the parties . Also in thissecond chapter, it was analyzed the main arguments that justify thejurisprudential shift aro und HC number 143.641/SP in order to accept the writ inthe collective modality. Regarding the doctrine, the research was divided amongthe doctrine of criminal procedure, constitutional doctrine, collective processdoctrine, specific doctrine of Public Defenders, master's texts, doctoral theses,and articles that address the topic. In the fourth chapter, it was assessed theinteractive dynamics between the collectively measures to protectedconstitutional fundamental rights and the Collective HC , as well as the proposalfor its regulation, overcoming embalmed points of the individual HC. In the fifthchapter, the research analyzed the restrictions brought by the Superior Courts tothe Collective HC , presenting the divergences regarding such limitat ions. Itunderstood that its legitimacy should be expanded and it should protect all typesof collective rights, especially through preventive Collective HC to guarantee theright to free speech of undetermined individuals. The Collective HC procedure,the application of procedural techniques to it such as self composition,13procedural legal acts, preprocedural legal acts, pre--constituted evidence, structural process, jurisdictionconstituted evidence, structural process, jurisdiction, , the the partiesparties, autonomous production of evidence, fluid recovery, collective , autonomous production of evidence, fluid recovery, collective enforcementenforcement, among others, among others)) were also analyzed.were also analyzed. In the final considerations, In the final considerations, it it was presented the reflectionswas presented the reflections about the direction of the about the direction of the Collective HCCollective HC, relating it , relating it to democracy, criminology, ideology, and culture, to democracy, criminology, ideology, and culture, andand the new composition of the the new composition of the Brazilian Supreme CoBrazilian Supreme Couurtrt.. The conclusion was The conclusion was that the technical inconsistency that the technical inconsistency arising from the lack of application of collective arising from the lack of application of collective redress redress concepts may be linked concepts may be linked to the to the ideologyideology adopted by the main actors of the legal system.adopted by the main actors of the legal system.
Key WordsKey Words: : Collective Collective Habeas CorpusHabeas Corpus, HC nº. 143.641/SP, , HC nº. 143.641/SP, collective processcollective process (class actions), collective criminal process (or class actions in the criminal (or class actions in the criminal system)
