Hermenêutica de exceção na Lava Jato: o uso político do direito processual penal pelo Poder Judiciário

Abstract

The delimitation of the research theme is: hermeneutics of exception in Lava Jato: The political use of the criminal justice system by the Judiciary. Starting from Operation Lava Jato and the entire spectacle provided by the public agents themselves and broadcast by the media. Many jurists pointed out illegalities, among them Streck, who, starting from the Hermeneutic Critique of Law, pointed to authoritarianisms. From such assumptions, the research problem was constructed: The decisions handed down by the Judiciary, in the context of Lava Jato, notably, that of the Federal Appeals Court Judge Rômulo Pizzolatti, Federal Regional Court of the 4th Region - TRF4 in case n.º 0003021-32.2016.4.04.8000/RS, would evidence a kind of suspension of the law, using private language to temporarily suspend the application of fundamental rights, reducing the application of the law in the decision-making process of the judge in a concrete case, to a technique of legitimizing power through an apparent legality? The general objective of the thesis is: To define the hermeneutics of exception, which has invaded Brazilian Judiciary, expressing the political use of criminal justice law, identifying the characteristics of this legal mechanism of legitimation of power, from decisions in the context of Operation Lava Jato. The thesis is justifiable. Its importance lies in the fact that when presenting and describing the existence of a hermeneutic of exception in Brazilian law, the Brazilian legal dogmatic crisis is clearly revealed, in which authoritarianism and the disregard of fundamental rights are coated with apparent legality. Thus, research results will contribute to the respect for the integrity of law, presenting the means by which the Democratic State must be respected in judicial decision theory, since the legal institutions, shouldn’t have an instrumental feature, which is an important mechanism for democratic dismantling. The theoretical framework used is the one formulated by Lenio Luiz Streck, based on the Hermeneutic Critique of Law (CHD). The method of approach that drives the research is the Phenomenological-Hermeneutic. The research delineation: bibliographic, documentary and through case study. It is concluded that the judges’ responses, in the decisions described in the second chapter, did not observe the chain of integrity of the law in terms of the Hermeneutic Critique of Law, injuring the Democratic State, reducing the individual to homo sacer. The result of the research is the definition of hermeneutics of exception: Exception hermeneutics can be defined as the procedure carried out by the judge who uses private language, in a specific case and in a provisional way, in order to attribute an inauthentic meaning to what has public language, that is, without any real mediation by law, transforming it into an instrument to achieve political ends. The choice of meanings is accomplished by the judge in the decision-making process in order to suspend, in specific cases and deliberated by him, the application of the Constitution and solipsistically justify the suspension of fundamental rights.