A lacuna jurídica da aplicação de medidas cautelares diversas da prisão contra parlamentares e sua (in) devida regulamentação pela ADI 5526

Abstract

This academic work has as goal to analyze the regulation of the use of precautionary measures other than imprisonment, that are applied against members of parliament, instructed by the decision in the Action of unconstitutionality (ADI) 5526, which has set itself the possibility of revision of a judicial decision by the legislature. In particular observing the consequences of such a decision in the context of Criminal Law, Criminal procedure and Constitutional law. However, before you enter these consequences, it is necessary to the understanding of the key issues, and they are the nature of the constitutional: parlamentar immunity, the principle of separation of powers and the republican; and criminal: a precautionary measure different from the prison, the bases of the criminal proceedings and the purposes of the Criminal Law. After the understanding of these institutes legal, we make a search by analyzing the jurisprudence of the use of these measures before the regulation, as well as of the foundations of legal votes, losers, and the winners of that ADI. Finally, we conclude, through critical comments, the consequences of such decision, being the most notorious the emptying of criminal jurisdiction, the breaking of the harmony between the Legislative and Judicial branches, and the creation of privilege improper to the members of the legislature.