Proibição de Retroatividade e Alteração Jurisprudencial: A Irretroatividade da Jurisprudência Constitutiva do Injusto Penal

Abstract

No one questions that a person should never be punished by retroactive criminal laws (principle of non-retroac- tivity of criminal laws). Sometimes, however, it happens that a new interpretation of a criminal law may be as disadvantageous for the defendant as a new law. The purpose of this essay is to examine the question whether some kinds of new interpretations of criminal statutes should be deprived of retroactive effects. Indeed, there are many new interpretations made by the judges that are comparable in terms of effects to a new criminalization made by the lawmaker. The paper concludes that these judicial decisions with constitutive criminalization effects should never retroact against the defendant.