O princípio da coculpabilidade e sua (in)aplicabilidade como atenuante genérica no Tribunal de Justiça do Espírito Santo

Abstract

The present work has the initial objective to identify how the Court of the State of Espírito Santo is positioned in relation to the principle of coculpability. In order to do so, it begins by examining the judgments handed down by its Criminal Chambers, followed by an analysis of the outcome of the judgments on the application of the principle of coculpability as a general mitigation of Article 66 of the Criminal Code, which pointed to the rejection of the local court principle. The arguments used by the judges to deny the applicability of the principle of coculpabilidad, which basically focused on the absence of proof of poverty or that poverty was the determining cause of the crime, and in the absence of legal and acceptance of the principle by higher courts. The main objective of the work is to expose the fragility of the arguments adopted by the criminal courts and defend the application of the coculpability principle. With regard to the first argument, it is argued that the state default that is intended to be offset by the application of the principle constitutes a notorious fact, therefore, does not provide proof. Afterwards, it is shown that, in order to recognize the responsibility of the State to criminalize the most vulnerable social segments, what must be proved is not that poverty was the determining cause of the crime, but rather that it was the determining cause for criminal punishment . On the second argument, it was confirmed that the principle of coculpabilidad is implicit constitutional principle, deriving from the principles of equality and individualization of the sentence. It was also presented some legislation that point to the recognition of the state coculpabilidad in the penal scope. It was concluded that there is no impediment to the application of the principle of coculpability as a generic mitigation of Article 66 of the Criminal Code, but its positivation was recommended as a means of guaranteeing its observance by the legal operators.