Causas de justificação e seu ônus probatório no processo penal: uma reflexão a partir das considerações da teoria da tipicidade conglobante

Abstract

In the present study, in the light of conglobant tipicity theory, it is intended to analyse the question of who should belong, at the brasilian criminal proceeding, the probatory incumbency in relation to the causes of justification. The study intends, in this sense, build objections to the understanding traditionally sustaining, especially because it is inconsistent with the postulates of a Constitutional Rule of Law. The conglobant tipicity constitutes a manifestation of the criminal law’s reductive function, so far as it requires that a conduit, apart from adjusted to the systematic legal type’s statement, imply a conflictiveness demarcated by the effective, substantial and non-normative injury to a legally protected interest. Thus, the conglobant tipicity consists a filter of rationality to which shall submit the punitive power in order its manifestation be less irrational, less violent and less discriminatory. The non-normativity required to the verification of an injury and, therefore, to verify the conflictiveness, seeks to determine, through the consideration of the normative ordering in its entirety, if a human conduct violates, actually, the norm underlying the criminal type. If a norm, of equal or higher hierarchy, limits the extent of the norm contained in the legal type, nullifying or making an exception in its contents, should be the conduct imputed as systematically typical considered atypical by reason of the absence of its non-normativity, and consequently, absence of conflictiveness. In this order of ideas, it is intended to demonstrate that there is no impediment in the analysis of the causes of justification on place of conglobant tipicity. Procedurally, this means the accusation must demonstrate the existence of a conflictive situation, in other words, the existence of an injury and non-normative (unjustified) behavior. Materially, this proposal states that a person do not be unjustifiably submitted or maintained to the criminal prosecution, reinforcing the reductive function of Criminal Law in face of unreasonable truculences of the punitive power.