O debate teórico-dogmático sobre o efeito da autocolocação em perigo da vítima na responsabilização jurídico-penal e uma breve análise do Habeas Corpus nº 147.250/BA

Abstract

This research project aims to analyze the effect of self-colocation in danger of the victim in the legal-criminal accountability of the author, through the study of Habeas Corpus nº 147.250/ BA. Adopting the analytical method, more specifically of judgement analysis, it was proceeded both a bibliographical research to raise and delimit conceptually terms, categories and theoretical-dogmatic conceptions related to our object of study, documentary research in order to elect the most appropriate for our case study. It was sought, when analyzing the aforementioned writ, to assess whether there was actually reception by the Superior Court of Justice of the theory of selfcolocation in danger of the victim as a defensive thesis, considering the exacerbated number of traffic accidents that occur in the country, in cases where the presumed author has not contributed to the occurrence of the typical result, which is solely due to the risky conduct voluntarily exercised by the victim. To achieve the study of the effect of self-colocation in danger of the victim it is necessary that there is a rupture of the conventional structuring of the relationship between the parties in the commission of a typical result, in which the perpetrator and the completely innocent victim are at diametrically opposed poles, which will consequently have a significant impact on the scope of the State’s punitive power. When considering an analysis of the effect of the victim’s behavior on the criminal accountability of the perpetrator, through the theoretical bases structured by the theory of self-colocation at risk and the principle of trust, it is possible to verify the influence of the offended in the typicality of the conduct of the presumed author, one of the constituent elements of crime, in the light of the Theory of Objective Imputation. In view of these considerations, the research allowed the realization that when self-colocation at risk of the victim and the principle of trust are used in the grounds of the decision in the measurement of legal accountability the full and unrestricted exemption of this responsibility, due to the atypical nature of his conduct. The theoretical framework corresponds to a set of works, mainly books and dissertations on the subject, especially the studies of Claus Roxin and Günther Jakobs on Theory of Objective Imputation, as well as the dissertations of Flávia Siqueira Cambraia on the principle of trust, and that of Ana Clara Montenegro Fonseca, which addresses the conduct of the victim of crime in criminal dogmatics; equally. In the field of victimization and limitation of responsibility in risky actions of the victim, subsidies were sought mainly in the doctoral thesis of Emetério Silva de Oliveira Neto.