A (IM) possibilidade da aplicação do instituto da prescrição virtual no ordenamento jurídico do Brasileiro.

Abstract

The Brazilian Judiciary Power, especially regarding to criminal justice, has a large number of pending proceedings, most of them unnecessary, once it becomes more unlikely to the State the application of the corresponding penalty. Facing these data, judges, prosecutors and lawyers began to use the creativity, as well as all the legal knowledge they owned, willing to find the faster way to resolve the issues discussed into judgment, arising from thisthe Institute of virtual limitation. This new type of limitation, despite having no expressed legal provision, it has been adopted by many Law operators,corresponding to one of the species of the limitation of punitive claim, in which the judge, or other Law operator, simulates the most severe possiblepenalty applied for the defendant if it were condemned in the end of the criminal process and, being that applicable, they perceive in advance the exhaustion of the limitation period at the time of the proposal of the criminal action, or even during its course. So, the limitation period in perspective is based especially on the absence of one of the conditions of action, which it is the interest of acting, once if absent the possibility of recognizing andapplication of the pleaded right, namely, the criminal penalty, and if verified the impossibility of being hit the purposes of the condemnation through the jurisdictional provision used, there is no possibility of interest of acting. According to this understanding, intending to demonstrate the nature and the admissibility of the aforementioned institute by the Brazilian Courts, were used, as a method of procedure, the deductive approach and historical comparison methods, and the theoretical as a research technique, which was made through bibliographic research, by the using of books, laws, jurisprudence, as well as studies available on electronic media, supporting the point of the object in discussion. This way, in the end of the research, it was found that – although still heavily criticized by several courts, including Supremo Tribunal Federal and Superior Tribunal de Justiça -, the virtual limitation is an advancement from the doctrine and jurisprudence, since it’s been seeking the reduction of the large amount of processes doomed to failure, replacing them with cases that deserve more attention and urgency, making it possible to them to have a fair trial, just the way the law predicted it must be. Thus, even wrongly opposed by the highest Brazilian judicial courts, the virtual limitation is feasible and represents a great step to reach the procedural celerity, making it not just a legal text, but a reality in Brazilian criminal process.