A despenalização no juizado especial criminal: o alcance da celeridade e a mitigação das garantias fundamentais

Abstract

The introduction of negotiation logic in the Brazilian criminal process, especially within the scope of the Special Criminal Courts (JECRIM), represents a significant change in the way minor offenses are handled, prioritizing decriminalization mechanisms — such as civil compensation for damages, plea bargaining, and conditional suspension of the proceedings — as opposed to the traditional criminal process, which is characterized by formality and slowness. In this context, this article aimed to critically analyze the effects of these mechanisms, investigating whether the emphasis on speed compromises the assessment of Just Cause and the minimum evidentiary support, an indispensable requirement (fumus commissi delicti) for criminal prosecution. It was a qualitative study, through a deductive approach, based on a survey of information obtained from specialized literature (including the critiques of Aury Lopes Jr. and Luigi Ferrajoli), national legislation, and updated case law. Consequently, it was observed that the relaxation of the evidentiary filter, often based solely on the Occurrence Report (TCO), undermines constitutional guarantees such as the adversarial process and the presumption of innocence. It was shown that this uncritical application, often on defendants in vulnerable situations, transforms the system into an "authoritarian efficiency" that diminishes the protection of rights in the name of judicial streamlining. It is concluded, therefore, that the effectiveness of consensual justice depends on the adoption of objective criteria and institutional safeguards that reinforce rigorous verification of Just Cause, ensure informed voluntariness and full understanding of agreements, preventing decriminalization from becoming a covert form of punishment or reinforcing penal selectivity.