RETROACTIVE APPLICATION OF CASE LAW IN CRIMINAL ENFORCEMENT IN CASES OF QUALIFIED PRECEDENTS

Abstract

This article analyzes the possibility of retroactively applying qualified precedents in criminal enforcement, equating them to the more lenient criminal law (lex mitior), whose retroactivity is constitutionally guaranteed. It argues that, given the binding force foreseen in Article 927 of the Brazilian Code of Civil Procedure (CPC), these precedents possess normative density similar to that of legal norms and, therefore, should apply to convictions that have already become final, guaranteeing equality, legal certainty, and effectiveness. Taking as an example STJ (Superior Court of Justice) Case 1087—which ruled out the application of the aggravating circumstance of nighttime rest in aggravated theft—it argues that denying its retroactivity generates unequal treatment among convicts. It thus defends that the judge of enforcement should apply such precedents, as occurs with novatio legis in mellius, a position that may be consolidated in the judgment of STJ Case 1331.