A aplicação pelo juiz de medida diversa da estabelecida em sentença judicial condenatória: uma análise do ativismo e do garantismo judicial

Paulo Roberto Meyer Pinheiro; Camila Gomes Barbosa; Martonio Mont'Alverne Barreto Lima

doi:10.5433/1980-511X.2018v13n1p14

Authors

Paulo Roberto Meyer Pinheiro UNIFOR - University of Fortaleza, Postgraduate Program in Constitutional Law - PPGD
Camila Gomes Barbosa UNIFOR - University of Fortaleza, Postgraduate Program in Constitutional Law - PPGD
Martonio Mont'Alverne Barreto Lima UNIFOR - University of Fortaleza, Postgraduate Program in Constitutional Law - PPGD

DOI:

https://doi.org/10.5433/1980-511X.2018v13n1p14

Keywords:

Judicial activism. Fundamental rights. Criminal execution. Guaranteeism. Criminal procedure.

Abstract

This research aims to analyze the judicial decisions that establish different ways of penalty compliance from those applied to the sentenced, due to the lack of suitable vacancies in prisons. Such an act of the Judiciary is the exercise of judicial activism for guaranteeing the fundamental rights of the prisoner, in particular, the human dignity right. During the development of this work, the details of activism and criminal guaranteeism were analyzed and such as judicial decisions applying different arrangements of penalty setting. The used methodology was bibliographical and documentar, in a qualitative approach, with descriptive and exploratory purposes, concluding that the application of least restrictive penalty regime, when the lack of places within the prison system promotes criminal guaranteeism through judicial activism as a way of achieving the individual rights and guarantees of prisoners, written in the 1988 Federal Constitution.

Author Biographies

Paulo Roberto Meyer Pinheiro, UNIFOR - University of Fortaleza, Postgraduate Program in Constitutional Law - PPGD

Master in Public Constitutional Law and Political Theory by the University of Fortaleza - UNIFOR. Bachelor of Law (2009) and Business Administration (2001) from the University of Fortaleza - UNIFOR. Specialist in Strategic Management in Marketing (2003) Fundação Getúlio Vargas. He is currently Supervisor of Queiroz Comércio e Participações LTDA - Edson Queiroz Group. He acts in Change Management responsible for team coordination and implementation of large internal projects. He has experience in Human Resources, Marketing and Law, with emphasis on Constitutional Law, Criminal Law and Labor Law. Acting lawyer.

Camila Gomes Barbosa, UNIFOR - University of Fortaleza, Postgraduate Program in Constitutional Law - PPGD

MSc in Public Constitutional Law and Political Theory from the University of Fortaleza (UNIFOR). Specialist in Business Law from the State University of Ceará. Specialist in Environmental Law from the Superior School of the Public Ministry of the State of Ceará. Specialist in Civil Procedural Law from the University of Fortaleza. Bachelor of Laws from the University of Fortaleza (UNIFOR). Promotor of Justice in the Area of Criminal Execution in Fortaleza.

Martonio Mont'Alverne Barreto Lima, UNIFOR - University of Fortaleza, Postgraduate Program in Constitutional Law - PPGD

He holds a law degree from the University of Fortaleza - Unifor, a master's degree in law from the Federal University of Ceará - UFC and a doctorate in law from Johann Wolfgang Goethe-Universität Frankfurt am Main. Post-doctorate in Law from the same University of Frankfurt / M., Under the guidance of Professor. Dr. Ingeborg Maus. He is currently the attorney general of the Municipality of Fortaleza and a full professor at the University of Fortaleza. He was vice president of the Brazilian Bar Association - Ceará Section. He has experience in the area of Law, with emphasis on Constitutional Law, working mainly on the following topics: Federal Supreme Court, constitutional jurisdiction, Judiciary, Brazilian democracy and constitutional law and history of Brazilian constitutional thought. He published his doctoral thesis in 1999 (Peter Lang Verlag, Frankfurt / M): Staat und Justiz in Brasilien - zur historischen Entwicklung der Justizfunktion in Brasilien: Kolonialgerichtsbarkeit in Bahia, Richterschaft im Kaiserreich und Verfassungsgerichtsbarkeit in der Republik.