A coculpabilidade e a seletividade pela vulnerabilidade e sua aplicação no direito penal brasileiro : Uma análise jurisprudencial.

Abstract

The aim of this research was to work with a very relevant theme, although not very widespread in Brazilian criminal law, which are the theories of co-culpability and selectivity due to vulnerability, which admit that the State's negligence in not promoting minimum conditions that guarantee the social rights listed in the Federal Constitution to its citizens, ends up promoting marginalization, which directly affects the freedom of the most vulnerable. The objective was to understand how the socioeconomic marginality of agents who commit crimes would be related to their culpability. For the realization and development of this research, bibliographic and legal exegetical methods were used, such as doctrines, scientific articles, codes, laws and jurisprudence. To this end, a synthesis of these theories was made and it would be up to the State-judge to recognize whether the absence of public policies would, in a way, propitiate the occurrence of typical and anti-legal facts capable of culminating in the result of the quantum of the sentence of the accused of criminal offenses. The justification for approaching such matters lies in the concept and origin of these theories, disseminated by Raúl Zaffaroni from the Enlightenment influences brought by the French Revolution of the 18th century, and in the possibility of its application as a generic mitigating factor provided for in article 66 of the Brazilian Penal Code. The breadth of the theme promoted an investigative outline on the application of these theories in our criminal law and criminal procedure, therefore, the methodology used was based on reading and bibliographical research, including doctrines, laws, scientific articles and finally an analytical study on the jurisprudence of some national courts, in order to see if the theories of co-culpability and selectivity due to vulnerability, were or were not being recognized and accepted by the Brazilian justice system.