A combinação de leis penais em benefício do réu sob o prisma da interpretação das normas de direitos fundamentais

Abstract

It remains a recurring discussion in the doctrine whether it is possible to combine criminal laws in order to favor the defendant's situation. In fact, there is a constitutional provision that the criminal law only retroacts if it results in a more beneficial treatment for the defendant. However, it is discussed whether this retroactive effect should apply the softer later law entirely, or whether it is possible to apply only the part of the new law that favors the defendant, while continuing to apply the terms of the earlier law that benefits the defendant. In sum: if is possible to combine the application of the earlier law and the later law, in its beneficial parts, simultaneously. This paper has as its general objective to analyse this subject by approaching it with the interpretation of Fundamental Rights. Thus, to answer this question, the methodology used was the bibliographic revision, both national and foreign, especially in the analysis of the doctrine of Criminal Law, Constitutional and Fundamental Rights. In addition, the national legislation on this subject was examined, as well as international legislation was explored in order to understand how this discussion is conduct in other countries. Furthermore, a chronological study of some decisions of the Brazilian Supreme Court was conducted in order to understand the position of this court on this issue. As specific objectives, there is to present how the division of powers occurs in Brazil, the creation and application through the time of the criminal law, the effect of the retroactivity of the later most beneficial criminal law and how to identify it, the position of the doctrine and the Supreme Court and, finally, how the interpretation of fundamental rights should be applied. The main argument raised by the doctrine contrary to this possibility rests on the fact that this would violate the principle of separation of powers, since the judge would be acting as a legislator creating a third law. In turn, the doctrine favorable to the combination holds that the constitutional norm doesn’t restrict the way this retroactivity occurs. The Supreme Court, after several modifications in its understanding, has established thesis contrary to the combination. Although, this did not end the doctrinal discussion and does not mean that the Supreme Court cannot change its position. This theme was chosen to present new arguments to this debate. In fact, as it is a constitutional norm of fundamental rights, the solution to this discussion rests in the interpretation of these norms. Ergo, the result of the best interpretation and application given to the constitutional norms of fundamental rights is that it is possible to combine criminal laws to favor the defendant.