Um olhar crítico sobre o ativismo judicial em matéria penal no Supremo Tribunal Federal: ativismo judicial garantista X ativismo judicial punitivista

Abstract

The Federal Supreme Court experienced a vertiginous institutional rise with the advent of the Constitution of the Republic of 1988. In this rise, the expansion of its functions and, consequently, the role that the Brazilian Constitutional Court plays in the daily life of Brazilian society stands out. The main factors that gave rise, in Brazil, to this expansion of the Judiciary Power were the strengthening of the Constitutional Jurisdiction; the expansion of the list of fundamental rights and the emergence of a new form of constitutional interpretation that boosted the normative force of the Constitution. It so happens that in the last two decades the Federal Supreme Court has handed down decisions that seem to invade the sphere of competence of the Legislative Power, in a phenomenon known as judicial activism. Such a practice proves to be harmful to the consolidation of a true Democratic State of Law and when exercised in criminal matters, represents a dangerous threat to the fundamental rights and guarantees of citizens subjected to criminal prosecution by the State.