Análise crítica do entendimento dos Tribunais Superiores a respeito da desnecessidade de apreensão e perícia de arma de fogo para a incidência da causa de aumento de pena prevista no art. 157, §2°-A, I do Código Penal

Abstract

In criminal practice, it is very common for weapons used in robberies as intimidating tools not to be seized and, consequently, not to be subjected to forensic examination, so that the verification of the capacity of these weapons to fire shots is not performed. However, it has been established, in the jurisprudence of the Superior Courts, that the seizure and subsequent examination of the weapon are unnecessary for the application of Article 157, §2°-A, I, of the Brazilian Penal Code, which provides for a two-thirds increase in the penalty if the robbery is committed with the use of a firearm. In light of this, the objective of this study is to analyze whether this understanding aligns with the current substantive and procedural criminal legal system. Therefore, a qualitative and quantitative study is conducted, which encompasses doctrine, legislation, and jurisprudence, with a descriptive and exploratory scope. As results, it is found that this jurisprudential position violates the corollaries established by Article 5, LVII, of the Federal Constitution; it contravenes Article 158 of the Code of Criminal Procedure, as it misinterprets Article 167 of the mentioned code, and it is illogical when compared to the ruling in Special Appeal No. 213,054/SP. Therefore, it is concluded that the current jurisprudence should be reformed in order to determine the mandatory seizure and examination of firearms for the purpose of applying the penalty enhancement provision of article 157, §2°-A, I, of the Penal Code, excluding, however, cases where the evidence presented in the proceedings allows for an indication of the defendant's actual use of the weapon.