As nuances da culpabilidade: punição em dose dupla e condenação presumida pelo ser

Abstract

This study aims to analyze culpability as a judicial circumstance provided for in Article 59 of the Brazilian Penal Code, highlighting its conceptual vagueness and the effects of this obscurity on Brazilian judicial practice. The research starts from the observation that the absence of objective criteria for assessing culpability has led to arbitrariness and to the rendering of decisions marked by the subjectivity of judges, thereby undermining predictability and the principle of legality. Through a deductive approach and based on bibliographical and documentary research, doctrines, legislation, and national case law were examined in order to demonstrate how the lack of a specific conceptualization of culpability as a judicial factor can result in illegalities, such as bis in idem and the application of an offender-based criminal law rather than an act-based one. Furthermore, the lack of precise parameters in assessing this judicial circumstance allows for judgments based on the judge’s personal perceptions and moral values, as well as on the defendant’s subjective characteristics, thereby distancing the sentence from its purpose of punishing the unlawful act rather than the individual. Thus, this study highlights the urgency of a doctrinal and legislative redefinition that establishes clear criteria for the application of culpability, in order to safeguard the principles of proportionality, human dignity, and individualization of punishment, thereby ensuring greater legal certainty in the process of sentencing.