Garantismo, execução penal e emergencia: o caso privilegiado da Operação Lava Jato

Abstract

According to official data, Brazil is one of the countries with the most incarcerated in the world. This statement carries within itself one of the great challenges of criminal policy since re-democratization, namely: the deep crisis in which the execution of the custodial sentence in this country is immersed. From the intersection between an inquisitorially sculpted criminal justice system and a markedly authoritarian criminal-juridical tradition, the current prison stage was built brick by brick. This dissertation aimed to understand what tensions, epistemological and normative, exist between criminal guaranteeism, as a constitutional theory that radicalizes the strength of fundamental rights and democracy, and the emergency criminal policy in the field of criminal execution, specifically,during the period from the start of Operation Car Wash to the entry into force of Law 13,964/2019. To examine this issue, the work was divided into three chapters. In the first one, we sought to present a concept of emergency criminal policy, as well as to analyze the context of Operation Car Wash, after its outbreak in 2014, drawing attention to its influence in the political-legislative field, from the outstanding performance of its main exponent, Sergio Moro. In addition, a study was carried out on the new legislative design promoted by the Anti-Crime Law in the field of criminal enforcement, with emphasis on the legislative changes that took place within the scope of the Penal Execution Law, the Penal Code, the Law on Transferring Prisoners to Prisons of Maximum Security and the Criminal Organizations Act. In the second chapter, an analysis of criminal guaranteeism was carried out, in some of its specific points, through the lens of its main theorist, Luigi Ferrajoli, to present the guarantist epistemological statute and its minimalist criminal political program. In the third chapter, we sought to undertake a lege ferenda critique against the emergency criminal political model in criminal execution, promoted by the Anti-Crime Law, first, highlighting the tensions in the epistemological spectrum and then in the normative field, taking as object analysis, then the concrete legal provisions that (re)designed criminal enforcement through the Anti-Crime Law. The method used to approach the question was the deductive method, with emphasis on bibliographic and documented studies for the development of academic research.