Codelinquency and overcharging: the need to distinct between necessary cooperation and complicity in criminal imputation

Abstract

The present work seeks to demonstrate the advantages that can be extracted from a differentiating treatment at the level of imputation of the unjust by way of participation. It defends the configuration of two distinct penal marks in the treatment of co-delinquency: a first mark, foreseen in the caput of art. 29 of CPb, referring to authorship, which also includes co-authorship and immediate authorship, and also the so-called “primary participation”, constituted by the form of participation which corresponds to a penalty equal to authorship (necessary cooperation); and a second milestone, provided for in § 1. of art. 29 of CPb, referring to “secondary participation”, constituted by a form of participation which corresponds to an attenuated penalty in relation to authorship (minor participation or simply complicity).

This individualized, restrictive and differentiating valuation of the phenomenon of codelinquency leads to the use of typicality as the basis of attribution, replacing causality, so that the distinction between authorship and participation becomes a problem of type, which generates an important reflection in the scope of procedural law: the need for the accusatory postulation to specify, in cases of co-delinquency, the legal classification of the intervention of each accused.

The adoption of this practice, in addition to representing greater respect for the principle of broad defense, bringing greater detail to the accusation made, would also have the concrete effect of increasing the possibility of applying the procedural figure of the conditional suspension of the process (art. 89 of Law n. 9.099/1995), the criminal transaction (art. 76 of Law n. 9.099/1995) and also the non-criminal prosecution agreement (art. 28-A of the Code of Criminal Procedure), as well as any other type of a legal-procedural institute based on the penalty imposed on the offense charged. This is because, in the case of participation by way of complicity, the special cause of reduction of sentence of art. 29, paragraph 1. (participation of minor importance), as it occurs in the attempted crime, and even in conjunction with this (competition of special causes of reduction of the penalty).