Audiência de custódia com diversificação para a justiça restaurativa fundamentada em esboço teórico de bens jurídicos relacionais: modelo com potencial de redução da superlotação carcerária no Brasil

Abstract

The ever-increasing incarceration in Brazil and in the world, as shown by national and international institutes for monitoring crime, has not resulted in a reduction in crime, but has reinforced it, thus suggesting adjustments in this thesis that necessarily consider: a) that the crime is a social and complex phenomenon and must be faced as such; and b) that the criminal justice system is flexible enough to present different and more adequate responses (multi-door system) to the variety of transgressions and subjects involved, in relation to the traditional system (single door). It was in this sense that this thesis showed, supported by the positive results of several meta-analyses, that restorative justice is a new paradigm of a multi-door justice system, but that it can collaborate with the increase of the effectiveness of the traditional system since: a) it allows the active participation of the victim, the offender and even the community in the debates about the case, giving them the opportunity to reach an agreement about it; b) the procedure may not necessarily result in the arrest of the offender; and c) traditional legal operators are no longer the protagonists of the process, allowing a broader approach to the conflict. Thus, we sought to answer whether a theoretical model of coping with criminal offenses based on diversification towards restorative justice from the custody hearing has the effective potential to reduce prison overcrowding in Brazil, with the response at the end of the studies having been positive. For this, it was based on several areas of knowledge such as Philosophy, Sociology, Criminal Law, Criminal Procedural Law, Criminology, Constitutional Law, Human Rights, Systems Theory, Criminal Policy, Victimology and Neurosciences. The research was theoretical, but supported by a wide bibliographic review with a vast amount of empirical data, thus being qualitative, but also prescriptive and systemic, avoiding, therefore, the use of the analytical method, proposed by René Descartes, and with that considered the crime as a social phenomenon in all its complexity. Thus, the study began with the hypothesis that crime is not just an offense against a legal norm, but mainly a violation of people and interpersonal relationships, followed by the use of Niklas Luhmann's Theory of Social Systems, but with two adjustments suggested in this thesis, thus proposing a new minimal social system in terms of its elements, from which a theoretical outline was also developed in an innovative way, here called Theory of Objective and Subjective Relational Legal Goods that, also using the Theory of Communicative Action, by Jürgen Habermas, it was possible to interconnect the theoretical frameworks prison overcrowding, custody hearing, restorative justice, and legal good, with the proposal of a new model to face prison overcrowding and criminal offenses based on 10 guidelines for immediate use in Brazil, which can allow a total annual reduction of Brazilian incarceration by approximately 30% (more than 200,000 unnecessary people per year in prison), considering the new classification of crimes proposed in this thesis applied to the current national profile of light, medium and serious crimes.