As sanções penais do ordenamento jurídico português

• Autor(a) principal: Rodrigues, Sílvia de Jesus Guedes
• Data de Publicação: 2022
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/148920
• topic: Direito

The security measures, as a criminal sanction in the Portuguese legal system, which leans towards a monist approach, are far from being perceived under a unified doctrinal point of view. If the classic sanction of the criminal system – the penalty – is relatively consolidated then subsequent creation of this new sanction, the legislation that circumscribes it and its regime, raises serious doubts which despite being addressed, have not yet reached the core of the Portuguese doctrinal and jurisprudential problems. The two Portuguese sanctioning forms are markedly dissimilar: they follow, from the start, different presuppositions – guilt and dangerousness – and a different principle – Principle of Guilt and Proportionality. However, it is evident what they commonly share: they act in the same Social Law State, under the basic principles of the Portuguese nation, such as the Dignity of the Human Person, Equality, and Proportionality. Thus, investigation into this new sanction cannot be devoid of similar considerations that are elaborated around the penalties, having therefore operated the tendency for the former to progress with a view to its approximation to the latter. Do security measures pursue an autonomous purpose of general positive prevention, considered to be paramount in the law of punishment? This will be one of the first target issues of the interpretative disagreement that is generated around the legal regime of this sanction mainly due to the reasons behind the ratio of its creation and institutionalization. As such, it is important to refer to the process of evolution of this consequence until it reaches the status of a criminal legal sanction in the Portuguese criminal system, acting alongside the well-established penalty. Without neglecting non-custodial security measures – since, from an interpretative point of view, they do not generate evident discord – the relevance attributed in this work to the custodial security measure is superior. The maximum limits of internment for the mentally ill are the epitome of the doctrinal divergences, due to the serious questions that arise around its admissibility in the legal system. The legal system is unequivocal in the construction of the legal regime of the duration of the internment security measure, but there will certainly be alternatives that will save it from its imminent unconstitutionality.