O direito fundamental à razoável duração do processo na execução penal brasileira

• Ano de defesa: 2021
• Autor(a) principal: Garcia, Cristina Victor
• Orientador(a): Junqueira, Gustavo Octaviano Diniz
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Razoável duração do processo; Execução penal; Tempo
• Palavras-chave em Inglês: Reasonable length of the proceedings; Sentence execution; Time
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/24484

Every judicial process is established based on the temporal idea of sequentiality. However, the operationalization of time by Law, restricting it to the concept of merely chronological time, especially when it comes to the sentence execution proceedings, is devised relying on incomplete assumptions. If time is not fixed, as it is directly associated to the space and the individual experiences brought by each person, the Law needs to treat the time of serving a sentence as a time of suffering imposed by the State and, when regulating the sentence execution, draw clear limits, whose boundaries are substantiated by the fundamental rights to the reasonable length of proceedings. The absence of formal definition of crime in the execution proceedings by withdrawing the notion of sequentiality, seems, in practice, to make the effectiveness of reasonable length unfeasible, wrongly allowing the free and unlimited action of the State-Judge, with regard to procedural time. Nevertheless, the recognition of the fundamental right in question, even though it had taken place before its inclusion in the Federal Constitution (Constitutional Amendment n. 45/04), gained ground from the perspective of sentence execution because it demanded its application to all court cases, binding constituted powers. Within the context of the rule-based democracy, the Brazilian sentence execution must be revisited from the perspective of the fundamental right to a reasonable length of the proceedings. Objective consequences (both in- and extra-procedural) can be expected in the event that its violation may result in that the time of execution of sentence imposed by the State is not increased again, beyond to what was set forth in the judgement. To this end, a reasonable period for an appeal of each criminal execution with in- and extra procedural consequences was identified, in order to apply the fundamental right to the reasonable length of the proceedings in sentence execution and limit, as a result, the punitive power of the State in the imprisonment