A justiça (penal) juvenil entre a teoria e a prática : um estudo comparado das práticas judiciais carioca e gaúcha

Abstract

The present research is located in the intersection between the critical criminology and the sociology of administration of (criminal) justice. Its proposition is to verify, through empirical research and comparative approach, if the judicial practices of the 4º Juizado da Infância e Juventude de Porto Alegre are different from the judicial practices of the Vara da Infância e Juventude do Rio de Janeiro, and which are the speeches that legitimates the judicial practices directed to the accountability of teenagers accused of committing a criminal offense. From a delimited research object and a macrosociological perspective of interpretation, it was intended to elaborate global explanations about the dynamics of the juvenile (penal) justice system and about the ideological motivations of its operators. Therefore, the research started from an analysis of the juvenile justice system from a criminological perspective, and it was reviewed the ideas of the criminological positivism and its influences on the elaboration of the first laws about juvenile justice; in continuation, it was presented the conclusions and critics made from the labeling approach theory, and the effects of the “minor” label on children and teenagers in “irregular situation”. To end the first chapter, it was examined the contributions of the critical criminology to the development of the full protection doctrine, and, therefore, for the edition of the Estatuto da Criança e do Adolescente, in 1990. The next chapter was destined to the analysis of the juvenile justice system from a normative perspective. It was reviewed the main principals of the juvenile penal justice, the nature of socioeducational measures and the need of recognizing the existence of a Juvenile Penal Law. It was examined the fundamental rights and the procedural guarantees destined to the teenagers accused of committing criminal offenses and the legal steps to establish liability. Ultimately, the last chapter consists in the presentation and analysis of the results obtained in the empirical research. It was presented the data obtained from the exam of archived lawsuits, from the observation of hearings and from the research of Rio de Janeiro and Rio Grande do Sul Tribunal of Justice’s jurisprudence. The conclusion was different from the previous hypothesis: the penal justice system of Rio de Janeiro does not confer more guarantees to the teenagers in comparison to Rio Grande do Sul. It was observed that in both states the remnant of the tutelary logic acts as a basic rule that orientates the judicial decisions and the manifestations of the juvenile justice’s operators, sometimes in opposition to the conquers of the Law 8.069/90. It was verified that the attribution of the judicial competence to the Criminal Court does not deviate the criminological positivism heritage left by the Minor Codes from 1927 and 1979. In conclusion, it was observed the existence of an abysm between theory and practice of the juvenile (penal) justice system.