O princípio da proporcionalidade como critério de aplicação da pena

Abstract

This paper aims to provide a scientific contribution regarding the use of the principle of proportionality as a criterion for application of the penalty, for the protection of rights and guarantees that our Constitution recognizes and to which postulates effectiveness. The proposal is to introduce an instrument likely to be handled by those who operate the right, using the judgment to verify that the penalty to be applied is effective, appropriate, necessary to reach the desired end. Objective also discuss the application of the principle of proportionality in the dosimetry pen, entailing that the judge should not merely follow the dictates of the law at the time of imposing the penalty, but above all, the need for the penalty to be proportional to agent's culpability as it is in the act of capital punishment material that the judge is faced with one of the greatest human rights: freedom. The methodology used will be essentially theoretical and descriptive, from a foundation built on a literature review of relevant authors to the subject, among which we can mention Alexy (1996), Beccaria (2014), Bittencourt (1997), Bonavides (1993) Castilho (2001), among others. We conclude that the use of the principle of proportionality in the dosimetry pen begins at the time the judge dosa the agent's guilt and runs after all the threephase process of the dosing pen. In this sense, the judge may, through the use of this principle, fix the base penalty below the legal minimum, if it reflects the real agent of guilt. This study deals with the principle of proportionality, the historical, legislative and doctrinal research has the scope to demonstrate the importance of effective and appreciation of constitutional criminal principles inherent in a democratic state of law, principles that working to ensure the freedom of individuals, fundamental right guarantor of human dignity, against the criminal action by the State