Non-retroactivity of criminal law and regime progression: the exception of the criminological examination for convictions prior to law no. 14.843/2024

Abstract

This study aimed to analyze the constitutionality of the mandatory criminological examination for convictions prior to Law No. 14.843/2024, based on the principle of non-retroactivity of criminal law to the detriment of the defendant, as established in Article 5, item XL, of the Federal Constitution. It examines how this requirement impacts the operation of the progressive prison regime system. To this end, a qualitative method was adopted, through an essentially bibliographic research, grounded in the works of scholars specialized in Criminal Law and Criminology, who address regime progression and explain the non-retroactivity of more severe criminal laws, seeking the doctrinal definitions relevant to the topics discussed. Furthermore, key decisions from higher courts were collected regarding the non-retroactivity of criminal law and its application in cases requiring the criminological examination under Law No. 14.843/2024. The findings show that both doctrine and jurisprudence recognize the mixed nature of the Law of Criminal Enforcement, meaning it is not purely procedural and, therefore, does not have immediate applicability, requiring adherence to the rules of substantive law. It was concluded that the case law of the Superior Court of Justice is well-established in holding that Law No. 14.843/2024 introduces an essential requirement for regime progression, making the release of inmates more difficult and, consequently, being more detrimental to the defendant, it should not be applied to facts prior to its enactment. In this context, the study also aligns with the objectives of the United Nations 2030 Agenda, particularly Sustainable Development Goal 16 (SDG 16), which aims to promote peaceful and inclusive societies for sustainable development, ensure access to justice for all, and build effective, accountable, and inclusive institutions. Observing the principle of non-retroactivity of more severe criminal law is essential to preserving the Rule of Law, ensuring legal certainty and respect for fundamental rights—pillars necessary for the achievement of SDG 16.