A suspensão do sufrágio universal aos presos no Brasil: análise do Art. 15, III da Constituição Federal sob a teoria das normas constitucionais inconstitucionais

Abstract

This study sought to answer the question: considering the theory of unconstitutional constitutional norms written by the German Professor Otto Bachof, is the suspension of the right to universal suffrage, imposed on those who are under the effect of a final criminal sentence, provided for in article 15, III, of the Constitution of the Federative Republic of Brazil, constitutional? The research proposes to dissect on the theory of unconstitutional constitutional rules, identifying the requirements for an original constitutional rule to be considered unconstitutional. Subsequently, present the historical-legal fundamentality of the right to suffrage, exercised through the vote, in the constitutions of the history of Brazil. Then, it is necessary to critically analyze the exception provided for in the Constitution of the Republic, critically addressing the contradictions between the constitutional text, the fundamentality of the political right to suffrage and the function of the penalty in the Brazilian legal system, as well as the marginalization and stigma that prisoners carry with them. Finally, it will be evaluated, based on the analysis and on the theory of unconstitutional constitutional rules, if the suspension of political rights of prisoners, foreseen in article 15, III, of the Constitution of the Republic of 1988, can be considered one of the hypotheses provided by Otto Bachof, classifying it as an unconstitutional rule. The research used the deductive method, theoretical genre, qualitative approach to the data, with the use of doctrinal and legislative sources, especially the Federal Constitution, Penal Code and Law of Penal Execution. It concluded that the provision made by Article 15, III, of the Constitution of Republic can be understood by the theory of unconstitutional constitutional rules, pointing out in its contradictions the unconstitutionality of the rule