O papel da culpabilidade na dosimetria da pena-base: elementos fundamentais de uma proposta inspirada na teoria da pena proporcional ao fato para o direito brasileiro

Abstract

The sentencing activity suffers from imprecise theoretical foundations about the factors that can be valued and an insufficient systematization in Brazilian doctrine and jurisprudence, which leads to excessive judicial discretion and deficit of legal certainty for all involved in criminal proceedings, especially for those convicted. In the dosimetry of the sentence, the problem stands out due to the open, unclear, and mainly subjective concepts listed in article 59 of the Penal Code. Furthermore, the strong link built throughout history between the idea of reprobation and culpability as a systematic category of crime also has repercussions to the moment of sentencing, contributing to decisionism and uncertainty in the quantitative definition. An adequate understanding of culpability, however, allows identifying limiting of the State's punitive power as its main function, which permeates all its meanings, including the one to be adopted for sentencing. To fulfill this mission and with the goal of improving sentencing in Brazilian law, then culpability must be conceived not simply as the level of reprobation of the criminal behavior, nor should it be weighted autonomously as just another judicial circumstance. Its role is that of a ruling criterion, an interpretive vector that acts in three dimensions: limit, guide, and empathy. According to the limit dimension, subjective-moralizing judgments are prohibited, the weighing of preventive purposes in sentencing to aggravate the legal situation of the convict is prohibited, and the recognizability of the factors that can be examined by the judge is mandatory. Guiding culpability, oriented to the Theory of proportional punishment, objectively directs the (legal) reprobation primarily to elements related to the crime, which can be apprehended from the Theory of Crime, according to the level of intensity of the behavior and the result. The "empathy" dimension, on the other hand, derived from the dignity of the human person principle and an additional path for limiting the state's power on the freedom of citizens, provides the possibility for the quantitative reduction of the criminal sanction based on the examination of culpability in its the strict sense and even of relevant aspects beyond the fact itself.