Periculosidade e medida de segurança em uma perspectiva foucaultiana

• Autor(a) principal: Cia, Michele
• Data de Publicação: 2018
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/21057
• topic: Direito Penal; Criminologia; Direitos Humanos; Medidas de segurança (Direito penal) - Brazil; Periculosidade (Direito) - Brasil; Criminal Law; Criminology; Human rights; Security measures (Criminal Law) - Brazil; Danger (Law) - Brazil; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The present paper, using the hypothetical-deductive method, tested the hypothesis that requiring an individual to no longer be considered a risk to society in order to suspend the execution of a safety measure is inadequate, since paragraph 1 of article 97 of the penal code is not compatible with the constitution. In order to try to defeat this hypothesis, the emergence of the concept of dangerousness was analyzed, within the scope of criminological positivism; the concepts of abnormality and pathology and their relationship to dangerousness were investigated in a Foucaultian perspective; the psychiatric concept of dangerousness was examined; the (in)existence of free will and its relationship with the dangerous category was analyzed; the use of the dangerous category by National Socialism was examined; the concept of dangerousness was analyzed critically, in the scope of legal-penal dogmatism; the purpose of safety measures and requiring the individual to no longer be considered a risk to society in order to suspend the execution of a safety measure were analyzed; the foundations of the Federative Republic of Brazil, constitutional principles of criminal law and individual guarantees, as well as the rights of persons with mental health disorders in the domestic legal system and in international human rights treaties were studied at length; the practical purposes of safety measures and the operability of the dangerous category in its` legitimization were examined. The hypothesis proved to be true, resulting in the recognition of the illegitimacy of the dangerous category in the Brazilian legal system and, consequently, of the safety measures. The paper proposes a legislative amendment in the sense of the impossibility of recognizing the exclusion of imputability due to psychological anomalities and the end of the dualism of criminal sanctions