Critérios e metodologia da primeira fase de aplicação da pena

Abstract

This work aims to present a new way of applying the basic penalty to legal judgments in view of the disproportionality existing in the current model. For this, it proposes a change in the reading of the vectors to remove the subjective circumstances in the analysis of the amount of pain in the first phase of the three-phase method. It supports as a method the identification of a basic third, and no longer a middle term, as it happens today. Linked to the research line “Contemporary Legal and Criminal Systems”, from the Post-Graduate Program in Criminal Sciences (PPGCCRIM), from the Pontifical Catholic University of Rio Grande do Sul (PUCRS), it offers a critical perspective on contemporary criminal dogma and its necessary reading constitutional. The research problem is the disproportionate methodology for applying the base penalty, taking as a hypothesis the removal of subjective criteria from the analysis of how much penalty in the first phase and the creation of a new term which is called the basic third. It questions how the expressions "necessary", "sufficient", "fail" and "prevent", contained in the caput of Art. 59 of the Penal Code, are aligned with the time of application of the initial penalty. The new method of applying the basic penalty proposed by the thesis seeks to limit the power of punishment exercised by the State and the spaces of discretion present in it, making it more rational. At the end, it presents a proposal for a bill to amend Art. 59 of the Penal Code, in order to remove the vectors linked to the convicted person, keeping only those linked to the criminal case. The objective is to make the motivation of the sentence more objective and less discretionary, limiting judicial subjectivism when it comes to quantifying the sentence in the first phase.