Supremo Tribunal Federal e as mutações constitucionais na Constituição Federal de 1988

Abstract

This research deals with the institute of constitutional mutation, making a historical overview of its use, as well as the exponent theories about the subject. Its application by the Supreme Court from Brazil and the lack of unification of the Court on the subject were analyzed, based on the study of an emblematic concrete case of constitutional mutation. In order to do so, national and foreign literature was researched, as well as a jurisprudential study, making a deep analysis of the institute. Thus, the correct application of the constitutional mutation by the Brazilian Supreme Court and its limits is discussed, through the study of the concrete case in HC nº 82.959-7/SP, that deals with the progression of sentence in heinous crimes and the constitutional mutation that occurred in article 5, XLVI, Federal Constitution of 1988. It was concluded that the plenary discussion of the Court about the unification of the use of the theme, as well as its limits, is essential, in order to have legal security and the limits of its competence are not exceeded, triggering the unbridled judicial activism.