GARANTISMO À BRASILEIRA: UMA ANÁLISE CRÍTICA À LUZ DA APLICAÇÃO DO PRINCÍPIO DA INSIGNIFICÂNCIA

This essay aims to demonstrate, through bibliographic and case law research, that the criminal garantism follows a current of theories that have been imported by national scholars, but here acquired a new meaning, supporting – contrary to the theses’ predictions – the conservation of the fundamental structures of our society instead of its transformation. So it is not a set of criticisms against principles of criminal garantism, but an analysis of how these principles have been used in Brazil. The conclusion is that when constitutional guarantees are not uniformly granted to all, they lose their character of guarantees, functioning as a kind of privilege, enjoyed only by those individuals who have the financial means to afford a consistent defense in an eventual prosecution. Thus, the social stigma left by prison mostly affects those individuals belonging to the poorest sections of the society, decreasing significantly their chances of social mobility, as well as the social group around them, thus contributing to the maintenance of social inequality.