Discussão acerca da possibilidade de fixação da pena privativa de liberdade aquém do limite mínimo previsto no tipo penal na segunda fase da aplicação da pena.

Abstract

There among legal scholars uniformity of understanding about the possibility of a custodial sentence be set below the legal minimum in the second phase of the application of the penalty though the Superior Court has issued Pronouncement No. 231, as some scholars positioning themselves against such. This research aims to elucidate the controversy created around the issue of the said docket that seals the mitigation of the sentence below the minimum required by the offense in the second phase of the implementation of the sentence, since the Superior Court judges standardized the performance of understanding that if accepted the magistrate in the second phase of the implementation of the penalty fix custodial sentence below the statutory minimum, it would be invading the field of action of the Legislature creating sentences, and generate the dangerous precedent of being able to claim that if he accepted the mitigation for analogy would have to accept that the judge could stipulate a sentence above the maximum limit. Using logical deductive method through desk research and literature, we analyze various works of renowned authors and jurisprudence of various courts Brazilians coming to the conclusion that the Federal Constitution and the Brazilian Penal Code provide legal foundation for the custodial sentence can be fixed below the limit provided by the offense in the second phase of implementation, the existence of the Principles of Legality and Penalty Individualization, plus there expressly provided in the letter that the criminal should focus on mitigating always calculating criminal, leaving the only proven regulatory device that could foreclose the performance shown here is the Precedent No. 231. Therefore, the present study demonstrates the possibility of fixing the sentence below the statutory minimum in the second phase of the implementation of the sentence because there is no legal prohibition and this is the fairest way of acting magistrates in relation to dosimetry applied to criminal convicted.