Decreto nº 9.246/2017: uma análise da constitucionalidade dos dispositivos impugnados pela ADI 5874

Abstract

The objective of this work consisted in carry out a technical analysis on the constitutionality of the provisions of Decree No 9246/2017 that were impugnated in Direct Unconstitutionality Action (ADI) 5874. For that, it were made a brief history of the evolution of the Criminal Law, especially of the purposes of the penalties, a presentation of the species of sentences used in Brazil, focusing on the prison crisis faced, and the conceptualization of the pardon, as well as trated of its modern function of criminal policy. In addition, were analyzed the constitutional norms that, according to ADI 5874, were disregarded by the Decree No. 9246. Here, it were highlighted the principles of separation of powers, individualization of punishment and proportionality, which are already, naturally, relativized by the pardon, emphasizing, in relation to the last principle, its meaning of prohibition against insufficient protection. The study was developed by means of broad references, including in the material supporting books, scientific articles, news, legislation, judicial decisions, as well as pleadings of ADI 5874. At the end of the analysis, it was concluded that only the Articles 1st, I; 2nd, §1st, I; 8,th, III and 11, II, are unconstitutional, because, with the exception of Article 8th, III, which has no practical application, they violate the principles presented, representing, mainly, hypotheses of insufficient protection of fundamental rights.