Da sociedade disciplinar e de controle à sociedade do constrangimento: uma análise da (in)disponibilidade dos direitos fundamentais sob a ótica do Instituto de Colaboração Premiada

Abstract

The title of the research is: “From the disciplinary and control society to the constraint society: an analysis of the (un)availability of fundamental rights from the perspective of the Award-winning Collaboration Institute”. The general objective is to understand the evolution of the Society of punishment and surveillance (disciplinary and control) to the society of constraint and, from this, proceed to an analysis of a hermeneutic-constitutional analysis of the (un)availability of fundamental rights under the perspective of the Institute of Award-Winning Collaboration, understanding it as a counter-right, a mechanism for exercising power and demonstrating the break with the Democratic Rule of Law. The methodology adopted was Lenio Streck's Critical Hermeneutics of Law, and bibliographical research was also used, with consultations to public documents, configuring the documental research. The importance of research is demonstrated by the need to observe and criticize solipsistic decisions, which break the integrity of the law. The research problem: how power mechanisms sustain the technology used by state agents and, therefore, design award-winning collaboration agreements, "encouraged" by arbitrary decrees of provisional arrests and other precautionary measures, as a central element for the constraint of the defendant/investigated in the "effectiveness" of the criminal process (understood, in this context, as the certainty of punishment), even if it is at the expense of violating fundamental rights and guarantees? The hypothesis is confirmed: This context that associates the effectiveness of the criminal process, award-winning collaboration, and precautionary measures of a personal nature in the conformation of a model of criminal prosecution is supported by the existence of a profile of the Judiciary, characterized by its protagonism during criminal instruction. The award-winning confession/collaboration must take place, even if at the expense of the violation of fundamental rights and guarantees, as occurs arbitrarily through the decrees of provisional arrests. With this, a society of punishment and surveillance (Foucault) turns into a society of constraint, using the elements of disciplinary society, control, and spectacle to promote the society of constraint, with the constraint of the individual being an exercise of power. Constraint is a biopsychological and social feeling, hence why biopolitics and the society of the spectacle contribute to the construction of the society of embarrassment. The original connections of the thesis, and its conclusion, lie in the fact that the institute of award-winning collaboration and its judicial handling, associated with the (arbitrary) decree of precautionary measures, especially precautionary arrests, break with the process model of the Democratic State of Law, creating a new procedural model of exception – the penal process of constraint, guided by the judicial profile that aims to guarantee a purpose for a criminal prosecution, which is to guarantee a quick response from the State by obtaining the award-winning collaboration. It is the Critical Hermeneutics of Law that is responsible for putting into effect the penal model of guaranteeism proposed by Ferrajoli, respect for the Constitution as the cloak that covers criminal law and delimits its performance.