Prisão Preventiva, Dever de Fundamentação das Decisões Judiciais, Ativismo Judicial e Respeito aos Precedentes: Estudo de Casos do Superior Tribunal de Justiça

Abstract

The Judiciary has taken part in the discussions and deliberations on topics that, as a matter of priority, should be discussed and defined by the other Powers of the Republic, generating questions about the limits of the separation of Powers. This situation increases their exposure to criticism and demands a greater argumentative burden, in the sense of rationally justifying decisions. This article takes as a premise the idea that the Judiciary, especially the Higher Courts, have constitutional legitimacy to determine the implementation of fundamental rights, in the face of unconstitutional omissions by the other State branches. The primary scope is to assess whether the decisions of the Superior Courts on the possibility of ordering preventive detention, after the enactment of Law n. 13.964/2019, observe the system of precedents and whether judicial activism is present in the interpretation and application of the law. Pure bibliographic and documental research is used. Regarding the approach, the research is qualitative. And, finally, regarding the objectives, descriptive and exploratory research is carried out. An analytical comparison was made between the reasons for deciding in the Ordinary Appeal in Habeas Corpus n. 131.263/GO and “Agravo Regimental” in Habeas Corpus n. 648.107/ES, both judged by the Superior Court of Justice, which deal with preventive detention. It seeks to demonstrate that non-compliance with the system of precedents combined with strong judicial activism cause legal uncertainty, in addition to being an affront to the Rule of Law itself.