Considerações sobre a aplicação do instituto da suspensão provisória do processo.

Abstract

The Provisory Suspension of the Process is an institute that appeared in the Portuguese legal system, through the Dec. Lei nº 78/87 of 17 of February that approved the Code of Criminal Procedures after the Revolution of the 25 of April. Suffering influences from the american “plea bargaining”, is however, substantially different, because our criminal procedural system does not allow a negotiation on the guilt. The point here is to reach a consensus solution on the destination of the proper process. It is an institute that aims to contribute to solve, for the way of the consensus and diversion, the small and middle criminality, out of the formal instances of control. Although the potentialities that the system presents, its application is of difficult compatibilization with the structuring principles of our legal-criminal system. Thus it happens in the common process, between the principle of the accusatory and the possibility of no agreement of the Criminal Judge, because this measure is a proposal made by the public prosecution service to not accuse, this no agreement does not lead to the obligation to accuse, we have here a clear intromission of the Criminal Judge in a phase where the “dominus” is the public prosecution service. In the summary special proceeding, the principle of the impartiality of the jurisdictional decisions is affected, when the judge proposes its own motion the application of this institute, and by any reason it is revoked, and he have to proceed to the judgment after already having measured the guilt of the defendant. After the occured legislative alterations in 2010, the obligatoriness of the agreement of the Criminal Judge, can make him the “dominus” of a process that is in the judgment phase, modifying all the picture of abilities of the jurisdictional function. To the future we defend that the law includes the application of the Provisory Suspension of the Process at least in more two cases: when the crime’s abstract frame is more than five years, but the public prosecution service considers mainly that in judgment, the concrete penalty will never be superior to five years (article 16º nº3 of the CPP), mainly in property crimes; and in the case of cumulation of offences, despite the frame of the penalty is superior to five years, since that in each crime, individually considered, we can verify the requirements of the applicability of the article 281º nº1 of the CPP.