Inconstitucionalidade do pagamento da pena de multa como requisito para a progressão de regime

Abstract

Criminal enforcement in Brazil follows the downgrading incarceration conditions with regard to prison sentences, which requisites required for progression are forecast in legislations, and this kind of reprimand does not deplete current species, because there are still right-restricting penalty and fine penalty, that are all distinct from each other and autonomous. In this sense, Supreme Federal Court, in a plenary uttered decision, overruled a request for progression to open conditions made by a condemned in Prosecution 470’s, which concerns defendants of the notorious scandal “mensalão”. After voting, the requirement was denied due to fine penalty’s payment absence by the doomed, exclusively, and that, according to Supreme Court, is a reason that prevents progression, though the others requisites are satisfied. Thus, it was possible to realize that Supreme Court applied a nonexistent conditioning in national legislation, in other words, denied a doomed’s subjective right because of a requisite formulated by itself, in an obvious situation of judicial activism, which turned out to be extremely prejudicial. Thereby, this paper intends to analyze the decision in comment, in order to clear up the reason of its unconstitutionality and incompatibility with Brazilian law system, under penalty of imprisonment for civil debt configuration, currently prohibited.