Jus Puniendi, or the right to punish, constitutes the state's prerogative to impose sanctions on individuals who transgress current criminal laws. Inserted within the scope of Criminal and Constitutional Law, this institute establishes the legitimacy of the State in criminal prosecution, aiming at the maintenance of social order and the protection of fundamental legal interests.
Concept and Foundation
Jus Puniendi is configured as the exclusive power of the State to prescribe and apply penalties to those who violate legal norms. Its legal nature is that of a power-duty, since the State not only possesses the prerogative to punish but also the duty to do so to ensure public peace and the validity of the social contract. The absolute ownership of this right resides in the state entity, in observance of the monopoly of legitimate force, with private self-help being prohibited, except in restricted cases of self-defense or state of necessity.
Historical Origin and Evolution
Historically, the transition from private vengeance (the self-help phase) to public vengeance marked the birth of Jus Puniendi. In Roman Law, the transition to the Cognitio Extraordinaria period consolidated punishment as a state act. With the Enlightenment, the concept was reinterpreted through the lens of the Social Contract (Hobbes, Locke, and Rousseau), where the individual cedes part of their freedom to the State in exchange for security, with the power to punish being limited by the principle of legality (nullum crimen, nulla poena sine lege).
Legal and Constitutional Provision
In the Brazilian legal system, Jus Puniendi finds its primary source in the 1988 Federal Constitution (CF/88), notably in Art. 5, item XXXIX, which enshrines the principle of legality. The power to punish is operationalized by the Penal Code (Decree-Law No. 2.848/1940) and the Code of Criminal Procedure (Decree-Law No. 3.689/1941), which regulate, respectively, the theory of crime and the structure of criminal prosecution.
Practical Application and Jurisprudence
The exercise of Jus Puniendi is not absolute, finding limits in fundamental rights. The Supreme Federal Court (STF) and the Superior Court of Justice (STJ) consolidate the understanding that the state's punitive claim is limited by the statute of limitations (Art. 109, CP) and by due process of law. Current jurisprudence, as observed in the judgment of general repercussion themes, reinforces that the execution of a sentence after a second-instance conviction, although debated, must respect the presumption of innocence (Art. 5, LVII, CF/88), thus modulating the force of Jus Puniendi against individual rights.
Related Principles and Doctrinal Divergences
Modern doctrine, influenced by authors such as Claus Roxin and Eugenio Raúl Zaffaroni, points out that Jus Puniendi must be guided by minimum intervention and fragmentation. Criminal Law, as ultima ratio, should act only when other branches of Law are insufficient. Divergences arise between currents that defend the retributive function of the penalty (punishment for the harm caused) and preventive currents (general and special prevention), with the Brazilian system adopting the mixed or eclectic theory.
Contemporary Relevance
Currently, the debate on Jus Puniendi has shifted to the effectiveness of alternative penalties and decarceration. The need for a punitive system that not only represses but also resocializes imposes on the State the challenge of exercising its right to punish without incurring human rights violations, especially in the face of prison overcrowding recognized by the STF as an "Unconstitutional State of Affairs" (ADPF 347).
Legal and Jurisprudential References
- Constitution of the Federative Republic of Brazil of 1988, Art. 5, XXXIX and LVII.
- Brazilian Penal Code (Decree-Law No. 2.848/1940), Arts. 1 and 109.
- Code of Criminal Procedure (Decree-Law No. 3.689/1941).
- STF, ADPF 347/DF, Rel. Min. Marco Aurélio (Unconstitutional State of Affairs in the prison system).
- STF, ADC 43, 44, and 54 (Provisional execution of the sentence and presumption of innocence).
- Doctrine: Zaffaroni, E. R., & Pierangeli, J. H. (2023). Manual de Direito Penal Brasileiro.
