A extinção da punibilidade dos crimes contra a ordem tributária pelo pagamento a qualquer tempo: uma análise à luz da proibição de proteção deficiente como perspectiva do princípio da proporcionalidade

Abstract

This study will address the potential violation of the principle of proportionality, from the perspective of the prohibition of inadequate protection of the legal interest, caused by payment at any time as a cause for the extinction of criminal liability in tax-related crimes. In this context, the legal nature, the criminal procedure, and especially the legal interest of tax crimes will be studied, with a special focus on points pertinent to the subject matter. Subsequently, the legal nature of criminal liability and its extinction will be analyzed, considering legislation, doctrine, and case law relevant to the topic. After this, the time will come to detail the payment as a cause for the extinction of criminal liability, seeking, in this process, to ensure a clear understanding of the future explanation regarding the influence of the decriminalizing effect of payment at any time on the protection of the legal interest safeguarded by tax-related crimes. Following that, the most pertinent aspects concerning the principle of proportionality from the perspective of the prohibition of inadequate protection will be explained, with a particular emphasis on the views of Supreme Court Justice Gilmar Ferreira Mendes and Professor Lenio Streck regarding the facets of this important constitutional principle. At the end of this explanation, arguments in favor of recognizing the potential violation of the principle of proportionality by allowing the extinction of criminal liability at any time through payment will be presented. Finally, the position of the Supreme Federal Court on the matter will be highlighted, including excerpts that discuss the arguments in favor of recognizing this possible violation.