THE DECISION OF THE BRAZILIAN SUPERIOR COURT OF JUSTICE AT HABEAS CORPUS Nº 281.101/SP – ANALYSIS ACCORDING THE THEORY OF NE BIS IN IDEM

Abstract

Recently, the Brazilian Superior Court of Justice decide that, before a double criminal conviction, the most beneficial to the accused, even handed down later, should prevail. However, the dissenting vote argued that the second conviction could not prevail, in reason of the final res judicata of the first decision. The correctness of this decision must be analyzed in the light of the ne bis in idem, highlighting its legal nature, its foundations and its dimensions. Only in this way will be founded a conclusion that confers prestige to this postulate, valuing its nature as a fundamental right of defense, whose objective is to protect the citizen from the persecutory abuses of the State.

Keywords

• ne bis in idem
• duplicity of criminal convictions
• res judicata
• litigation pendency
• fundamental right of defense