EXPECTATION VERSUS REALITY: NOTES ON A GUARANTIST CONSTITUTION IN A PUNITIVE LEGAL SYSTEM

Abstract

This essay aims to present considerations regarding the landscape of disputes between the progressive and conservative currents within the context of the National Constituent Assembly and the penal system in Brazil prior to 1988, the year when the Citizen Constitution was promulgated. It is assumed that such disputes require hermeneutical interpretation, adaptation of infraconstitutional legislation, and the assistance of doctrine in order not to undermine the effectiveness of the promulgated text. From the research conducted, it is evident that the State of Art of Criminal Law prior to the Federal Constitution was marked by authoritarian characteristics, compatible with the exceptional regimes in which the Penal and Criminal Procedure Codes were forged (and to which they served). The Constituent Assembly, however, demonstrated a progressive stance in the field of criminal law, seeking to solidify, albeit implicitly, principles such as the presumption of innocence, due process of law, and the accusatorial procedural model as individual rights and guarantees. However, there are various cultural and infraconstitutional obstacles that prevent the 1988 Constitution from imposing the rights and guarantees established therein, ultimately hindering the realization of the democratic order as conceived.