JUDICIAL PRECEDENTS IN CRIMINAL PROCEEDINGS: critical considerations on the (non-)retroactivity of precedents in malam partem

Abstract

This paper develops the idea of judicial precedents in criminal proceedings, advocating for the adoption of this system in the Brazilian criminal process as a means to bring more legal certainty to the parties involved. However, the paper problematizes the issue of the retroactivity of precedents in malam partem, arguing that when the Higher Courts create a binding judicial precedent that represents a setback in fundamental rights, such precedent should not be retroactive. The paper concludes that it is important for the democratic criminal process to adopt the precedent system — to ensure legal certainty, predictability, coherence, unity of law, and equality — provided that the peculiarities of the criminal process are observed, meaning that the theory of judicial precedents should be tailored for criminal proceedings.