Remição ficta da pena pelo trabalho: uma análise acerca da possibilidade de sua aplicação à luz das contribuições da criminologia crítica

Abstract

This thesis addresses a legal mechanism enshrined in article 126, “caput”, of the Brazilian Code of Criminal Execution (Law. nº 7.210/1984 - the so-called “remição”). It authorizes a criminal convicted, through work or study, to redeem days previously imposed as deprivation of liberty. In this respect, the aim of the present paper is to analyze the possibility of, rather than de facto justifying it on the effective performance of labor activity, in fact applying such redemption using a legal construction based on a critical criminology theoretical framework. In this sense, taking into consideration the State omissions regarding its duty to offer or facilitate prison labor, this paper developed a theoretical, descriptive and exploratory research with the aim of investigating the possibility of applying a new legal construction of a “fictitious” remission of penalty days in cases when the State does not provide the possibility of work and study to the convicts. Such research has also an empirical aspect since it investigates the role of the Brazilian Supre Court on the subject. Moreover, this discussion has a special relevance due to the prison overcrowding and systematic violations of fundamental rights that occurs in the Brazilian prison system. The research undertaken allowed the categorization of authors into two distinct doctrinal views, one contrary and one favorable to the applicability of the “fictitious” redemption of the penalty. In this analysis, four arguments were identified as essential for understanding the positioning of the two sides, namely: a) the absence of any legal provision; b) the violation of the constitutional principle of isonomy; c) the impossibility of enforcing the right to work by free and unemployed citizens in Brazil; and d) the crime configuration of ideological falsehood through the false declaration of labor. In the jurisprudence of the Supreme Court, only three judgments were found on the subject, which identified the predominance of two arguments, namely: a) the requirement of work as an instrument in the “resocializing process” of the prisoner; and b) the impacts that fictitious redemption could have on the prison system. Finally, this paper concluded that there should be a possibility of redemption of the criminal penalties in those cases, in the Brazilian legal system, based on the following grounds: a) the possibility of analogously interpreting the “caput” of article 126 of the Code of Criminal Execution; b) that there is no violation of the principle of isonomy or configuration of the crime of ideological falsehood; c) the right to work in prison should not be judicially protected and enforced in a similar way to the right to work of free citizens; d) there is no resocializing process in which labor activity can act as an instrument; and e) it is the duty of the Supreme Court to hold the State accountable in such cases, given its failure to implement the public policies established by the Constitution, regardless of the impacts that such determination may have on society and the prison system.