A regressão cautelar de regime prisional na execução da pena privativa de liberdade: um estudo das divergências doutrinárias e jurisprudenciais sob a perspectiva dos princípios do contraditório e da ampla defesa.

Abstract

The monographic study aimed to analyze the institute of precautionary regression prison regime on deprivation's liberty execution, front of doctrinal and jurisprudential differences that exist about the subject. Despite this institute is not mentioned in the Prison Law, large part of doctrine and jurisprudence understand to be fully possible to apply it, founded, basically, on the general power of caution designed the magistrate. This view has created quite a stir in the existing legal system, since the Penal Execution Law states that to be effective the regression's prison regime is indispensable do the convict's previous oral testimony. So, the precautionary decree of the regime flagrantly violates the principles of legality, the contradictory and full defense. Then, this paper proposes to demonstrate, based on doctrinal and jurisprudential lessons, the positions that exist about this institute, highlighting their main arguments. For this, to reach the summit of research, it was necessary to structure it in three chapters. First of all, we started with a broader premise, highlighting the penalty’s historical origins to reach the current custodial sentence. Second, entered the process of individualization of custodial sentence, emphasizing their legal and enforceable phases, when we did a detailed study on the penalty compliance regimes, progression and regression regime, analyzing each of their hypotheses. Finally, in the third chapter, as logical consequence of what was discussed in the previous chapter, was developed to study the precautionary regression prison regime, emphasizing the two existing positions as well as the consequences resulting from its application. To reach the goal set for this work, the deductive and exegetical-legal methods were used, employee by techniques of bibliographical and documentary-jurisprudential research, with subsidies in the national doctrine, research papers and positions of courts. It was verified, therefore, the importance of this paper, since the decision orders the prison regime of precautionary regression shows is totally arbitrary and unconstitutional, because the failure to comply with the principle of contradiction, in addition to violating the provisions of the Penal Execution Law and in the Constitution, is an obvious throwback to the rights and guarantees previously conquered, inadmissible under the Democratic State of Law.