Application by the judge of a diverse measure from the stablished in a convictive judicial sentence: an analysis of judicial activism and guaranteeism

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.