Aplicação da detração penal sob a luz da constituição federal

Abstract

Article 42 of the CP provides that the time in which the sentenced person was arrested during the course of the police investigation or criminal process, before the final sentence of the criminal sentence, will be deducted from the penalty or security measure to be carried out, and this the discount has the technical name of criminal subtraction. Currently, the right to retraction is recognized both by the Criminal Executions Court, which determines the calculation of the early arrest in the calculation, and by the Knowledge Court when the condemnatory sentence is issued (Article 1 of Law 12.736 / 12). It happens that the legislation that deals with the restrictive rights penalties in substitution to the deprivation of liberty penalties, modalities subject to conversion in case of non-compliance under the terms of art. 44, §4 of the Penal Code and art. 181 of the Law of Penal Execution, did not regulate the discount of the period of serving the alternative sentence, when converted into deprivation of liberty, nor the possibility of criminal subtraction from the time when fundamental rights were curtailed due to the submission of the accused to alternative precautionary measures the prison. The aim of this work is to demonstrate that both restrictive rights penalties and precautionary measures must be submitted to the institute of criminal subtraction in order to prevent the execution of bis in idem. There are those who can affirm that the criminal subtraction of the time to fulfill the restrictive penalty of rights and / or precautionary measures, due to the absence of a legal provision, would constitute an alleged subversion of the Penal System, a misunderstanding. The execution of a just penalty is one of the objectives of the Penal System, and if this scope has not been achieved, a systematic adjustment is necessary on this point. The institute of retraction is a guarantee that the judge will be subjected to a fair, adequate, sufficient sentence, but his protection has been deficient, subjecting the condemned person to the fulfillment of an unnecessary and excessive fraction of the penalty for not providing for the criminal subtraction the time in which he carried out precautionary measures or submitted to the enforcement of a restrictive penalty of rights. The solution to the problem would be in the expansion of the institute of criminal subtraction, in order to meet the constitutional provision that the penalty will be imposed and served according to the principle of proportionality in the context of guaranteeing criminal law, covering both negative guaranteeism, which is the prohibition of excess (Ubermassberbot), regarding the prohibition of deficient protection, which presupposes that the protection of the legal good defended by the State cannot be insufficient (Untermassverbot). Finally, it should be noted that the methodology used in this doctrinal and jurisprudential research was the deductive and comparative method.