IDP teachers, Gustavo Mascarenhas, Vinicius Vasconcellos, Rafael Ferreira and Mariana Madera are columnists in the conjur. Check out the first article:

It is necessary to know Habeas Corpus to deal with criminal jurisprudence in Brazil

Criminal law is constantly adapting to society, seeking to combine the science it produces with the changing currents of thought throughout history around its main theme: freedom. It can be said that the tension between the protection of individual freedoms and the search for reducing crime is a pendulum in social relations and perceptions. Over time, the predominance in social choices alternates between greater concessions and relativization of rights and guarantees or more rigorous protection.

Habeas corpus 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 confused with that of habeas corpus . At the time, the Supreme Court established itself as the highest body of the Brazilian judiciary. The idea, espoused by legislators at the time, came from Rui Barbosa, in view of the American model of judicial review, according to which the strong jurisprudence of the Supreme Court has cogent power in relation to previous instances, establishing a diffuse control of constitutionality. Announcing, topologically, the relevance of the heroic remedy, the Federal Constitution of 1988 allocated habeas in the framework of fundamental rights, defining the guarantee that “ habeas corpus  will be granted whenever someone suffers or is threatened with suffering violence or coercion in their freedom of movement, due to illegality or abuse of power ”. In this context, petitions have been an instrument of important advances in jurisprudence, following a civilizing path aimed at preserving individual rights.

The STF, especially from the first years of the 21st century, achieved notable projection in national public life. His ministers, whose faces until then were unknown to the general public, became intimate in Brazilian homes; its decisions, subject to the scrutiny of experts and people in a vast and unequal network of interpreters of the Constitution. At the same time, investigations and academic research have multiplied that aim, with greater or lesser success, to expose its contradictions, praise its achievements or alert to what some consider to be an expansive action. It is necessary, however, to understand the Supreme Court and interpret its decisions.

Returning to the conclusion of Minister Carmen Lúcia at the time of the judgment of HC 152,752, on March 22, 2018, it can be said that the history of the Supreme Court is confused with the history of the treatment given, over more than 100 years, to habeas corpus . In the current scenario, knowing him is knowing the Court; to belittle it is to diminish the role of constitutional justice. The importance and indispensability of habeas corpus for structuring a criminal system is evident. More than that, a criminal procedural dogmatic in accordance with the protection of human rights, necessary for a country that intends to consolidate itself as a Democratic State of Law.

See, for example, the case of prison in the second instance: until the judgment of declaratory actions nº 43, 44 and 54, when the Supreme Court ruled the unconstitutionality of the provisional execution of the sentence before the conviction became final. The issue was constantly addressed and debated in habeas corpus. In case No. 69,964, rapporteur Minister Ilmar Galvão, judged on December 18, 1992, the Court concluded that the sentence could be provisionally executed, with Ministers Sepúlveda Pertence and Marco Aurélio unsuccessful. In habeas no. 84,078, rapporteur minister Eros Grau, the Plenum, on February 5, 2009, reviewed the precedent, considering the early execution of the sentence to be incompatible with the constitutional text. The jurisprudential pendulum continued in habeas corpus no. 126,292, rapporteur Minister Teori Zavascki, when the Court, on September 2, 2016, faced with a new composition, once again recognized the feasibility of executing the sentence after exhaustion of the ordinary route. The controversy only ended (to date) with the joint trial, ended on November 7th, of the aforementioned ADCs.

There are several other prominent themes that are the subject of important discussions in the processes revealing habeas corpus , in procedural and material terms, such as preventive detention, issues related to drugs, the principle of insignificance, the dosimetry of the sanction, house arrest of pregnant women and of mothers with children under 12 years of age, the statute of limitations, the Jury Court, the right to silence.

In practice, any case can reach the Federal Supreme Court through successive and staggered petitions. The data demonstrate a marked increase in the number of habeas , as well as a relevant percentage of concessions, although decreasing over the years:

The scenario suggests two findings: (i) habeas corpus is a fundamental and primordial mechanism for access to the Federal Supreme Court, which highlights its importance for consolidating the criminal jurisprudence of the Brazilian highest court; (ii) it is necessary and urgent to know the Court's flows and decision-making panorama to think about ways to rationalize the system – which is essential to optimize the STF's actions and ensure an equal and equal application of its jurisprudence.

Reading the decisions, whether monocratic or collegiate, gives a good idea of ​​how ministers have dealt with this volume of petitions. For example, there is a tendency to abstract the control of constitutionality in habeas corpus , establishing understandings to establish a precedent that can be applied not only to the specific case under trial (which would be the rule in habeas ), but to a larger number of cases. It is hoped that the precedent set will be replicated by previous instances or even monocratically by ministers.

See the case of HC No. 127.900, rapporteur Minister Dias Toffoli, in which the Plenum established guidance regarding the incidence of the rule included in article 400 of the Code of Criminal Procedure, from the publication of the minutes of that trial, to all procedures criminal cases governed by special legislation, focusing only on those criminal actions whose investigation had not been completed. In another example, there is currently discussion about establishing the thesis and possibly modulating the effects of what was decided in HC 166.373, rapporteur Minister Edson Fachin, on the order of final arguments in cases of plea bargaining.

On some occasions, the decision in habeas corpus is consolidated with the issuance of a Binding Sumula – an important mechanism in establishing strong jurisprudence . The judgment of habeas corpus No. 89,429, rapporteur Minister Carmén Lúcia, and 91,952, rapporteur Minister Marco Aurélio, gave rise to Binding Summary No. 11, that of habeas No. 81,611, rapporteur Minister Sepúlveda It belongs to 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 out the paths for expanding the scope of decisions taken by the STF in habeas corpus.

The Court's understanding naturally became an imposition of reality on all operators of Law and criminal sciences. This means that the good petitioner, in addition to presenting a concise petition, objectively indicating the violation of freedom suffered, must seek to demonstrate that either the illegality under examination has already been the subject of analysis by the Court and is facing disrespect for the Supreme Court's jurisprudence, or that the Court must, based on indications of the evolution of the understandings of the ministers or in view of the new configuration of the Panels or the Plenum, re-analyze the issue, or, even, show that it is a new object of analysis, such as that established by legislative change.

Therefore, we increasingly need means to publicize and consolidate the positions of the Federal Supreme Court with regard to habeas corpus. In this sense, this weekly column will be a space to expose, analyze, criticize and discuss data, decisions and relevant topics in relation to habeas corpus, especially in the STF. Let's go together!