The Irretroactivity Principle: Protecting Rights in Times of Change

The principle of non-retroactivity is a cornerstone of Brazilian law, ensuring that new laws cannot harm previously acquired rights. This principle is enshrined in the Federal Constitution, specifically in article 5, XXXVI and XL, which state that the law shall not prejudice acquired rights, perfect legal acts, res judicata and that criminal law shall not be retroactive, except to benefit the defendant. Recent changes in legislation, such as the amendments to the Penal Execution Law and new provisions in the labor courts, illustrate the practical application of this principle and the importance of its observance for legal certainty.

Penal Execution Law and the Irretroactivity Principle

Law 14.843/24, which brought significant changes to the Penal Enforcement Law, prohibiting benefits such as temporary release and outside work without direct supervision, has generated debates about the retroactive application of harsher rules. A recent case involving a prisoner convicted of robbery highlighted the application of the principle of non-retroactivity.

In the case, the judge of the 8th Criminal Chamber of the Minas Gerais Court of Justice ruled in favor of maintaining the convict's temporary release, arguing that retroactive application of the new law would be illegal. The decision emphasized that the new law could not revoke a benefit that had already been granted under previous legislation, thus avoiding the application of a harsher criminal law retroactively.

Updates in the Labor Courts

Labor justice is also undergoing significant transformations, reflecting the changes in labor relations in the modern world. One of the most notable changes is the express provision in the legislation allowing the formalization of civil employment contracts without the creation of an employment relationship. This measure aims to make employment relations more flexible and modern, offering greater freedom to both employers and employees.

However, it is crucial that these new provisions respect the principle of non-retroactivity, ensuring that rights acquired under previous legislation are protected. Thus, the new understanding that civil employment contracts do not generate an employment relationship should only take effect for contracts signed after the change in legislation, without harming the rights acquired by workers under the previous rule.

Principle of Tax Irretroactivity

The principle of non-retroactivity also applies to tax law, as established in Article 150, III, point “a” of the Federal Constitution:

Art. 150 Without prejudice to other guarantees assured to the taxpayer, the Union, the States, the Federal District and the Municipalities are prohibited from:

III - levy taxes:

a) in relation to triggering events that occurred before the law that instituted or increased them came into force;

This principle prevents taxes from being levied on taxable events that occurred before a new law came into force, ensuring that tax laws are applied prospectively. There are, however, exceptions to this principle, as outlined in article 106 of the National Tax Code (CTN), which allows for the retroactive application of merely interpretative and benign laws.

Tempus Regit Actum

According to the legal expression tempus regit actum (time governs the act), any event necessarily takes place in a certain time and space, so that rules need these parallels in order to be applicable in relation to a certain social fact. As a rule, law uses the time in which the act was carried out, enshrining temporal logic in the principle of non-retroactivity.

Impact and Importance of the Irretroactivity Principle

The principle of non-retroactivity serves as a bulwark against legal uncertainty, providing stability and predictability in legal relations. In times of frequent legislative changes, the guarantee that new rules will not affect rights already acquired is fundamental to maintaining citizens' confidence in the legal system.

In the context of changes to the Criminal Executions Law, the provisions of the labor courts and the application of tax rules, the application of the principle of non-retroactivity ensures that reforms, although necessary and often beneficial, are not implemented in such a way as to cause unfair damage to individuals who relied on previous legislation to plan their lives and activities.

In a scenario of constant legal change, non-retroactivity remains an essential guarantee of justice, ensuring that new and harsher laws do not harm those who already have rights secured under previous legislation.

By respecting this principle, the Brazilian legal system strengthens the trust and stability necessary for social and economic development, reflecting a commitment to justice and the protection of individual rights.