Da ilegalidade no cumprimento de pena no regime aberto domiciliar fora das hipóteses previstas no Artigo 117 da Lei de Execução Penal

Abstract

This paper has as the main goal the study about the penalty which deprives the liberty and the open residential regime, focusing the discussion about the legality or not in its concession to the convicted who does not fulfill the requirements cited in the article 117 in the law of Penal Execution. It also, aims, to understand the circunstances and the reasons which are the base of the Judge’s decisions to give the benefit of the regime of home imprisonment against the legal determination, as well as pointing the center of the controversy generated about the theme, whose relevance is perceived behalf the existing accordance in the judicial environment as to the failure of the Brazilian penitentiary system, made worse by the inconsideration of the Public Power, whose omission is pointed by the doctrine professors as one of the main causes which lead the judge to take unexpected decisions, and , not rarely, apposite to the legal rules, to acknowledge this or that right, being that, in accordance to the constitutional commandment, the judge cannot abstain himself of proffering his decision, even as controversy it may be.