Das circunstâncias atenuantes: uma análise da Súmula 231 do Superior Tribunal de Justiça sob a ótica garantista

Abstract

Through the understanding of the application of the penalty system in the national legal system, it is intended to consider whether the penalty may be reduced below the legal minimum in the second phase of dosimetry in the face of a generic mitigating circumstance. The controversy exists once that operation is prohibited by Precedent 231 of the Superior Court. Despite the consolidated agreement found in the mentioned Precedent, part of the national doctrine does not seem to be convinced by the reasons of it, being resistant to accept it. A considerable number of legal practitioners understand the possibility of reducing, believing that a neoconstitutional vision, fundamental rights and guarantees of individuals must be respected in order to legitimize the jus puniendi of the State. The individualization of punishment by the magistrate is indispensable in this case, so that each offender responds to the extent of his fault.