A medida de segurança no direito penal brasileiro: a (in)constitucionalidade do instituto penal dirigido ao inimputável portador de doença mental

Abstract

The present work aims at analyzing the institute of the security measure, listed in art 97 of the Brazilian Penal Code, addressed to the unbearable people with mental illness, discussing its unconstitutional points from principles such as: strict legality, equality, humanity, contradictory, ample defense . With this, we may note that the security measure uses a disguise of "sanction-treatment", being a penal sanction more cruel than the own custodial sentence, violating fundamental rights. To do so, it is necessary to analyze the security measure from a guarantor lens, using the theory of criminal guaranty, proposed by Luigi Ferrajoli. When proposing the clash between the security measure and the theory of criminal guaranty we can note that the institute fits the authoritarian system, proposed by Luigi Ferrajoli. The main anti-Guaranty point is the assumption of the subject's criminal dangerousness, since it is not an objective concept and much less determinable, thus, it is verified that the subjectivism present in the dangerousness opens the door for violations of the rights of individuals with mental illness. Understanding the current problems of the security measure, we must seek alternatives, such as equal treatment between imputable and unputable, ensuring that all existing rights of the defendant (defendant) are applied to the unimpeachable. Thus, it is sought to end the invisibility existing with the unworthy, giving a dignified treatment and not the imposition of a false "sanction-treatment".