PRESCRIPTION IN PERSPECTIVE FROM THE VIEWPOINT OF FUNCTIONALIST THEORY

Abstract

This academic work is dedicated to the meticulous examination of one of the most controversial topics in contemporary Criminal Procedural Law: Prescription in Perspective, also identified in doctrine as virtual, anticipated, or projected prescription. The core of the research lies in the analysis of the legal viability of recognizing the extinction of the agent's punishability even before the pronouncement of a conviction, based not on the maximum penalty prescribed for the crime, but rather on the sanction that, hypothetically, would be applied to the specific case given the judicial circumstances presented.

The exposition begins with a theoretical foundation on the institute of criminal prescription, understood as the loss of the State's right-duty to punish due to the passage of time. The text establishes the classic distinction between the prescription of the punitive claim and the executory claim, situating prescription in perspective as a doctrinal construction that challenges the traditional dichotomy. The central point of the debate is the tension between the Principle of Legality and the Principle of Utility of Jurisdiction. While the first prohibits the application of non-codified institutes, the second questions the rationality of maintaining a criminal prosecution that, in the end, will inevitably result in a meaningless sentence due to retroactive prescription.
Throughout the development, the text confronts the robust arguments against its admissibility. The resistance of the higher courts stands out, materialized in Summary 438 of the Superior Court of Justice (STJ), which considers the extinction of punishability based on a hypothetical penalty inadmissible. From this perspective, the application of virtual prescription would violate due process of law and the principle of presumption of innocence, since the defendant would be deprived of the right to seek an acquittal on the merits, being subjected to a decision based on an alleged guilt anticipated by the magistrate. In addition, the procedural risk of mutatio libelli is pointed out, where new evidence could alter the classification of the crime to more serious types, frustrating the prior prescription calculation.

Conversely, the study supports the thesis in favor of its application based on the State's lack of interest in acting. It argues that when it becomes evident that the final conviction will be useless, the process loses its raison d'être, becoming an unnecessary burden for the accused and an irrational expenditure of public resources for the Judiciary. The text uses as jurisprudential support decisions of the Court of Justice of Rio Grande do Sul (TJRS) which, despite the established prohibition, apply the institute on the basis of interest-utility, seeking to avoid the movement of a judicial machine already overburdened by demands doomed to failure.

The research reaches its peak when it introduces Claus Roxin's Functionalist Theory. Through this lens, Criminal Law is seen as an instrument of criminal policy intended to protect legal assets and prevent crime. In Roxin's thinking, punishment is only justified when socially necessary. Therefore, if the passage of time has already diluted the preventive need for the sanction, maintaining the criminal process becomes dysfunctional. The study concludes that Prescription in Perspective, although lacking express legal provision, finds ethical and technical legitimacy in aligning the criminal process with the desires for a more expeditious, effective, and respectful justice system that protects human dignity, preventing the defendant from being subjected to "trial for trial's sake."