O dever de fundamentação das decisões judiciais criminais – enfoque constitucional, teorias da decisão e prática judiciária

Abstract

The 1988 Brazilian Constitution establishes that all judicial decisions must be adequately motivated under penalty of nullity. Thus, if a judge does not justify his/her decision, it cannot produce any legal effect; it will not exist for the law. Still, a question arises: What is a properly reasoned decision? How to identify it? Only in 2019, with Law no. 13,964, did the ordinary legislator touch a part of this issue to some extent, as §2 of Article 315 of the Code of Criminal Procedure cited hypotheses of unfounded decisions. However, without losing sight of the advances brought by this legislative change, the insufficiency and lack of justification of judicial decisions (especially the criminal ones) have still been repeatedly questioned in the country's courts, which suggests that gaps still need to be filled. Furthermore, this situation gains additional weight when one realizes that the impossibility of identifying a reasoned decision coincides with the impossibility of determining the proper functioning of the justice system itself. This dissertation is the result of exploratory research of a translational nature, incorporating a bibliographic and documentary approach. Therefore, this work first investigates the constitutional contour for criminal justice decisions: the principles that structure the Brazilian legal system were studied, notably the principle of the rule of law, the democratic principle, and the republican principle, as well as the proximity that these principles maintain with the judge's duty to provide sound reasons to his/her decisions. Notwithstanding the solid constitutional basis related to the necessity of principled sentencing, there remain many problematic issues that a contemporary judge must face (notably involving issues such as gender, race, socioeconomic situation, and many other vectors of inequality involving the subjects of the process, defendants, and victims). These are inevitable questions for the judiciary in the contemporary democratic State of Law, for which criminal and criminal procedural legislation reveals itself to be manifestly lacking or incipient. Therefore, it demands innovative and challenging academic contributions that are not dissociated from practical challenges. Along with this text, we present and discuss theoretical contributions to judicial decision-making, legal, reasoning, argumentation, procedural issues, and sentencing. We dare to face some of these issues and, within the possible limits of the present work, envision some horizons to fill this critical

theoretical and practical gap, articulating constitutional principles and the infra- constitutional possibilities of national law, dissecting aspects of decision theories,

researching solutions in comparative law, revealing findings from criminological and interdisciplinary research. Finally, with due attention to its concrete implications for judicial practice, we sketch a protocol containing basic principles and procedures for an ethically principled judicial decision.