O ne bis in idem na interface entre o direito penal e o direito administrativo sancionador: limites ao poder punitivo e a proposta de reforma do código de processo penal

Abstract

The Brazilian sanctioning system allows the same conduct to be punished simultaneously in both criminal and administrative spheres, without any normative mechanism to coordinate the responses of each. This configuration, legitimized by the dogma of the independence of instances, produces a cumulation of sanctions that frequently violates the ne bis in idem principle in its material dimension and conflicts with the constitutional requirements of proportionality and human dignity. This dissertation critically examines the legitimacy of such sanctioning duplicity and proposes a normative model capable of conferring unity, rationality, and material limits to the exercise of state punitive power. The research adopts a dogmatic-structural approach combined with comparative analysis, encompassing the Brazilian, North American, and European legal systems, alongside a normative-propositive perspective. Drawing on the theoretical frameworks of Ferrajoli, Roxin, and Hassemer, as well as specialized Brazilian scholarship, the study reconstructs the unity of the ius puniendi as a foundational premise of the principle, develops its material requirements, identity of subject, fact, and legal basis, and demonstrates that the absence of express legislative discipline produces a structural violation that interpretive tools alone cannot durably resolve. As its central contribution, the dissertation proposes the insertion of Article 66-A into the Brazilian Code of Criminal Procedure, establishing the mandatory suspension of administrative proceedings upon criminal prosecution for the same facts, the qualified prevalence of criminal decisions, and a sanctioning discount principle, whereby penalties already imposed in one sphere must be considered in the sentencing of the other. The proposal dialogues with the legislative models of Portugal, France, and Germany, as well as the jurisprudence of the European Court of Human Rights, offering the Brazilian debate a concrete instrument of reform that strengthens the effectiveness of the sanctioning system and the protection of fundamental rights.