Garantismo penal no Brasil e a resistência autoritária: reflexões críticas

Abstract

The general objective of this research is to discuss whether the Brazilian justice system is a “garantista” along the lines thought by Ferrajoli, or if it is based on criminal “garantismo” only as rhetoric, following the example of theories such as integral criminal “garantismo”. The specific objectives are: to make explicit the “garantismo” in a democratic society; explain penal “garantismo” according to Luigi Ferrajoli; understand penal selectivity in Löic Wacquant; and, discuss practices “antigarantistas” of the Brazilian justice system. In this clipping, these authors and their conception and purposes of Criminal Law and Democracy are constitutive of the theoretical framework. Penal “garantismo” is a system of maximum freedom and rationality of punishments, but it is poorly understood in Brazil. This misunderstanding leads to the false impression that criminal “garantismo” is a factor that increases impunity and the feeling of insecurity experienced on Brazilian soil. Seeking to justify flexibilization of fundamental rights and guarantees, re-readings of the theory are proposed, such as the integral criminal guarantee. It so happens that the feeling of impunity is a symptom of the selectivity of the justice system. Analyzing it from the perspective of critical criminology in the Chicago School, the way of selecting criminal conduct, and consequently, the criminal, stems from an excluding and elitist process. The research adopts a deductive methodology, with a dialectical-sociological approach, and application of a bibliographic review technique and data analysis by content analysis. The body of the research is built with a bibliographic resource using the connectedpapers tools, H google scholar indexers, review of the FDV collection, dissertations and theses, as well as referencing the works of selected theorists most cited in Brazil. On the hypothetical conceptual basis, crime is a social construction, and criminality reflects these relations of society and the process of integration/exclusion, demonstrating that the system is mainly aimed at controlling the black and economically marginalized population, according to the research of Löic Wacquant, pointing out the function of social control of prisons in a capitalist society, which criminalizes poverty and the livelihoods and survival of the marginalized, justifying with the crime rates the rigorous action in the ghettos and on the excluded. The Brazilian justice system presents incarceration data that demonstrate the selectivity of the system. The selection and collection of data were guided by judicial decisions that resort to theories that coincide with the theoretical references adopted in this research, notably STJ and STF. The selection and collection of data were guided by judicial decisions that resort to theories that coincide with the theoretical frameworks adopted in this research, notably STF, with emphasis on actions of constitutionality control that stand out on the discussion about impunity, and decisions that textually addressed aspects of “garantismo penal integral”. The phenomenon observed by Wacquant is present in Brazil, and ranges from the planning of public policies for public security - therefore, from guidelines of the justice system and priorities for public security, through the lethality of repression systems and the posture by part of the judiciary to relativize guarantees to combat a feeling of impunity and fear in society. In order to justify greater rigor in punishment and greater speed in the application of penalties, the reinterpretation of the (integral) guarantee, based on criteria of weighting between the guarantees of freedom and the fundamental rights to public security and the effectiveness of the justice system have been gaining traction. It is concluded, therefore, that the justice system in Brazil does not tend to the guarantor system proposed by Ferrajoli. The system is driven by a punitive populism that is harsh on the marginalized and lenient on the elites, and justified in society's sense of impunity. As expected results, this research serves to provoke a deconstruction of the judicial guarantee rhetoric, as well as its reproduction in other sectors of the Justice System