A aplicabilidade da nova definição de infrações de menor potencial ofensivo à Lei n.° 9.099/95

Abstract

With the enactment of Law 10.259/01 (Federal Special Courts), which introduced a new definition for a minor criminal offense, stipulating that the crimes subject to its scope of action would be all those whose maximum penalty, in the abstract, did not exceed two years or a fine, an immense controversy arose in the Brazilian legal system, due to the existence of a differentiated concept for these types of offenses in art. 61 of Law No. 9.099/95, which stipulated the penalty for offenses subject to its judgment as up to one year. As a result, several doctrinal and jurisprudential understandings emerged with the aim of solving this intricate problem. It should be noted, however, that the interpretation that is most consistent with the ideals of justice and equity is the one that guides the applicability of the new definition of a minor offense to Law No. 9,099/95, since it is supported by the constitutional principles of equality, retroactivity of the law that is most beneficial to the accused, and proportionality, which do not allow the coexistence of different concepts for the same factual situations, which would inevitably generate a situation of flagrant injustice. Thus, it can be stated that, by imposition of the constitutional principles mentioned above, part of art. 61 of Law No. 9,099/95 was tacitly revoked by art. 2 of Law No. 10,259/01, which increased the maximum penalty for the purposes of applying special federal and state jurisdiction from one to two years. Therefore, reaffirming the understanding of the current majority in relation to the controversy explained above, based on constitutional provisions, is the main scope of this study, especially because, since there is still no legal solution for the contradiction between both normative precepts, it is necessary to make an interpretation aimed at the implementation of justice, under penalty of distorting this essential ideal by express provision of law.