The Principle of insignificance and custody hearing

(im)possibility of recognizing of exclusion of the “material typicality” of a conduct during the presentation

Abstract

In the judgment of APDF 347, the Federal Supreme Court declared the unconstitutional state of affairs of the Brazilian penitentiary system and as a measure to reduce the recognized calamity, it established the need to implement the norm contained in article 7 item 5 of the American Convention on Human Rights, so that all arrested people must be presented to the custody hearing to assess the legality and need for precautionary detention, among other purposes. From another perspective, measuring the adjustment of the fact to the penal law whether the conduct is based on the expressiveness of the offense to the legal good and its repercussion on contemporary crime due to the perception of the increase in the volume of cases of petty crimes, provoked reflection on the possibility of defining the issue presented during the custody hearing. The objective of the present study is to reflect on whether there is a limit so that, when examining the legality of the arrest, the custody judge recognizes the substantial not
adjustment of the conduct due to the insignificance of the injury caused and determines the archiving of the case, with the solution of the criminal proceedings. Recent research by the General Public Defender's Office of the
State of Rio de Janeiro, based on data collected by the Custody Hearings Center, illustrates the reflection of poverty as a criminogenic factor and points to the results of the proceedings initiated for the criminal liability of those who commit crimes of theft in which insignificance could be considered a defensive thesis. Although there is a provision to promote the archiving of the case in custody hearing (art. 8 of Resolution CNJ 213/2015), urged to speak
out in a specific case, considering the material atypicality of the conduct in custody hearing, the STF affirmed that the competence of the custody judge is not exhaustive in relation to the facts that led to the individual's arrest,
however the conclusion may be different when the judge accumulates powers for the custody hearing and judgment on the merits of the case.