A Retroatividade da Decisão Penal Benigna – a efetivação do princípio da igualdade sob a dimensão sociológica da norma – uma questão de justiça

Abstract

Equality has been the mechanism of social, cultural and economic revolutions and fruit of the desire from the society as a way of reaching justice. For that, it has been searched through time the positivation of the isonomic treatment in law in order to achieve this social wish. However, the inclusion of the principle in law has not played its role, principally in social terms as far as it concerns the criminal judicial decision. It has been common the use of the legal norm in different ways, depending, almost always, on the social, cultural and economic situation of the accused one. Also, as the real fact of being accused in a criminal process on a way to achieve the criminal law in its maximum effectiveness, it has been denied prior rights and lowed principles that inform the penal science. The rationality of the decisions and its intuitive content, as an act of desire of its interpreter, ground, almost always, against the accused one. That situation gets worse when the part does not provide goods to reach the Appeal Courts. Studying paralleling of equal situations with different decisions, despite of the isonomic principle, it can be revealed the injustice on this way. As an answer to approximate these different decisions it is urgent that appears an immediate response inside the own legal term that can treat equally , as a conduct of justice , the equal situations, without social or economic groundings. Informed by the basic principles of the criminal science, such as retroactivity of the welfare law, favor rei , not guilty presumption, the relativity of the judged case, and directed by the isonomic principle, this study searches the re(creation) of a new conception of the retroactivity theory. Thus, the retroactivity needs to contempt not only the law, but also the decision that reveals the legal text. It is not intended with this study to create a limit, a basis, but extract its result and content, and if better for the accused, it needs to be used therefore to every case that contemplates the same fact. On this ground, the present essay has the goat to analyze the possibility of using the same decision, principally the welfare one, for the equal facts, quoting that it provides power enough to go through time and reach the judged case. For that it is used the philosophical ground on the guarantism to apply the punishment power given to the State to legitimate the rational and justice form of using the criminal law balancing the freedom of the citizens guaranteed by Constitution. It was used doctrinal studies and judicial decisions, as well as the decisions of the Court Justice of Alagoas, and also the results from the researches of specialized institutes on criminal politics.