IMPLICAÇÕES CONSTITUCIONAIS, PENAIS E PROCESSUAIS PENAIS SOBRE A BOLEIA DO CAMINHÃO

Abstract

The right to inviolability of domicile has always been constitutionally provided, from the Constitution of 1824 to 1988, representing an essential guarantee for Brazilian citizens. Thus, the individual who owns a certain dwelling can enjoy it without the interference of third parties, having the power to decide how to use it best and who can attend it. It is known that the extension of the legal concept of house is much more comprehensive in the sense of the Penal Code in relation to that of the Civil Code, so the majority doctrinal positions consider the predominance of the constitutional-penal understanding, since the house will be any compartment that may be inhabited, whether fixed or mobile, on a permanent or temporary basis. The truck cabin, therefore, also called a ride, can also be equated to a house for criminal purposes, since truck drivers need to rest and enjoy their privacy during their work journeys along road routes. At the moment when the driver of this cargo vehicle is transporting a firearm of permitted use, there may be different procedural implications, since the decisions of the higher courts are still not peaceful on the subject. In this way, the truck driver may undergo a house search or a personal search. The current understanding of the Superior Court of Justice is that the truck ride will not be considered a house or even a work instrument, but only a means for the driver to reach his work objective. The problem is that this court has already ruled in the opposite direction, when it equated the truck cabin with the broad constitutional meaning of housing. Consequently, the current understanding of the Superior Court of Justice demonstrated a jurisprudential inconsistency from the constitutional point of view, since the cabin of this cargo vehicle is also used for the driver's rest.