The habeas corpus 126,292 and the nature of the imprisonment resulting from a 2nd conviction decision

Abstract

Faced with the new Brazilian constitutional conformation, inaugurated in 1988, it was incumbent upon the Public Prosecutor's Office to defend the legal system, the democratic regime and the unavailable social and individual interests. Also according to the provisions set forth in the Magna Carta and infraconstitutional criminal legislation, it is the responsibility of the ministerial body to promote public criminal action. Thus, Brazilian doctrine largely understands that the national legal order has enshrined the principle of the unavailability of criminal action, an understanding that does not deserve to exist, since no article of national constitutional or infraconstitutional legislation expressly provides that, in fact, the criminal action is obligatory, being such a principle a true dogma among Brazilian jurists. Thus, trying to demonstrate that the principle of unavailability is not covered by the normative order of the country, the methodology of this work consisted of a bibliographical survey and review of the specialized literature on the principle of obligatoriness, as well as the dogmatic-juridical method, in order to analyze the national legislation, in addition to the comparative method, in order to compare Brazilian law with foreign law.