Binding Precedent and Criminal Law

Felippe Gonçalves Fernandes

Summary

This paper aims to analyze the institution of Binding Precedent, introduced in the Brazilian legal system through Constitutional Amendment No. 45, known as the "Judicial Reform", and addressed in art. 103-A, and its paragraphs, of the Constitution of the Federative Republic of Brazil. It is regulated by Law 11.417, of December 19, 2006, through which the Supreme Federal Court, as a result of its repeated decisions on constitutional matters, will express itself on the validity, interpretation or effectiveness of certain norms, about which there is a current controversy that causes serious legal uncertainty and significant multiplication of processes. With regard to Criminal Law, the scope of application of the binding precedent requires vigorous care, notably because criminal interpretation is widely delimited by the Federal Constitution itself, which in its article 5, paragraph XXXIX, guarantees that there is no crime without a previous law defining it, nor penalty without prior legal provision, so that in the Brazilian legal system no one can have their freedom restricted unless there is a previous illegal conduct; a law in a formal sense that establishes clearly and precisely what is prohibited. This is the application of the Principle of Specificity, which establishes the requirement that the norm describes the punishable act and corresponds easily to the inculpatory type, that is, to a conduct capable of being concretely performed, which limits the scope of judicial action through binding precedent.