Habeas corpus: um breve momento histórico e a sua banalização na atual ordem jurídica brasileira

Abstract

A segment of the legal doctrine teaches that the Habeas Corpus, a legal instrument that protects the human right of freedom of movement, emerged in the prohibitory interdicts of the Roman law through an institute named Interdictum de Libero Homine Exhibendo. In contrast to this position, the majority of the doctrine points that the Habeas Corpus comes from the English law, more specifically on the Magna Carta bestowed by the king “John Lackland”, in 1215. In Brazil, the Habeas Corpus is mentioned expressly for the first time on the Empire Criminal Code (1830) and it was regulated on the Empire Penal Process Code (1832). Its inception in a constitutional basis occurred implicitly on the Empire Constitution (1824), and expressly on the Constitution of the Republic of the Brazilian United States (1891). The way that the constitutional piece was written referring to the Habeas Corpus in 1891, made it possible the understanding that this institute protected any right, even those with no penal character, in order to safeguard the liberties and the rights of constitutional nature. The constitutional reform in 1926 changed the original purpose of the mentioned device, establishing that the Habeas Corpus had, as its only object, the protection of the freedom of movement. After that, every constitution promulgated or bestowed in Brazil established expressly the Habeas Corpus as an instrument that safeguard the freedom of movement. Nowadays, it prevails on the doctrine the understanding that the Habeas Corpus has legal status of action. Following divergente positions on the use of habeas corpus as a substitute for appeal are presented. Throughout the study , the analysis is performed by exposing the doctrinal positions and addressing the issue by Brazilian courts. Finally, he informs that the Habeas Corpus instrument should be used only for cases of restriction of the freedom to go, to come and stay, not admitting other forms of judicial protection.