Medida socioeducativa de internação: (in)aplicabilidade da dosimetria da pena em João Pessoa – PB

• Autor(a) principal: Pereira, Nayara Toscano de Brito
• Data de Publicação: 2023
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UFPB
• Texto Completo: https://repositorio.ufpb.br/jspui/handle/123456789/30693
• topic: Direito da criança e do adolescente - SGDCA; Socioeducação; Relatórios psicossociais; Medida socioeducativa privativa de liberdade; Discricionariedade fraca necessária; Decisão judicial discricionária; Socioeducation; Psychosocial reports; Socio-educational measure depriving liberty; Weak discretion required; Discretionary court decision; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

This thesis deals with the phenomenon of Socioeducation, aimed at adolescents, who are people in development, according to the Child and Adolescent Statute (ECA), entitled to opportunities and facilities that enable healthy development in all spheres. The basis for building this image is the Federal Constitution of 1988 (CF/88), which promoted the recognition of adolescents not only as an extension of adults, without effective protection, but as social subjects with specific rights, who need to be protected, who must be given full protection. Their vulnerability is recognized, which entails the demand for absolute priority of actions on the part of the family, society, community and the State. In this sense, even if adolescents commit criminal acts, the need for specific protection and monitoring must continue in practice, so that there is no application of penalties, but rather socio-educational measures that disapprove of the act. Judges, in turn, need to act in line with this protective basis, so it is necessary to infer the level of discretion that may or may not be applied to decisions to maintain socio-educational measures depriving liberty. In this context, the present thesis had as its guiding problem: Does the judicial decision to maintain the socio-education student's hospitalization reproduce the application of the dosimetry of the criminal penalty or must it comply with the paradigm of necessary weak discretion? As a general objective, we sought to demonstrate that the judicial decision to maintain the hospitalization of socio-educational students requires weak discretion. In turn, the specific objectives were: a) to contextualize the theoretical contribution on images surrounding adolescence, contrasting the status of subject of fully protected rights with the figure of the juvenile offender; b) analyze socio-educational measures, especially those relating to hospitalization, highlighting their national and international regulatory frameworks; c) verify how the levels of discretion in judicial decisions are theoretically presented; d) investigate the functioning of the Socio-Educational Hospitalization Units of João Pessoa-PB from the perspective of interviews carried out with the multidisciplinary technical team, comparing their psychosocial reports evaluating compliance with the measure with judicial decisions regarding the reevaluation of the hospitalization measure. Regarding the methodology, the following are highlighted: carrying out a literature review, which was carried out initially to contextualize the topic covered; documentary research, which aimed to examine how the Brazilian legal system and the resolutions and treaties to which Brazil is a signatory position themselves on Socioeducation; and, finally, interviews with the multidisciplinary technical team that monitors socio-educational students in compliance with a socio-educational internment measure and, periodically, prepares reports that may culminate in the request for extinction or progression of the measure. To this end, the basic theoretical framework was mainly based on: the theories of need, assistance and protection, by Irene Rizzini and Francisco Pilotti, with regard to the image of adolescents; to CF/88, the Convention on the Rights of the Child, the ECA and the Law of the National Socio-Educational Assistance System, in relation to the system protecting the rights of adolescents; to Marcelo Neves' theory of discretion and Hart's judicial discretion, with regard to the level of discretion in decisions to maintain the hospitalization of socio-educational students and the Doctrine of Integral Protection as a pragmatic theoretical instrument for interpreting judicial decisions. Interviews were carried out with the multidisciplinary technical teams that monitor and evaluate compliance with the socio-educational measure of hospitalization of male adolescents at the Centro Educacional do Adolescente, Centro Socioeducativo Edson Motta and Centro Educacional do Jovem, seeking to understand the following indicators: profile and professional technical training; profile of the teenager in conflict with the law and the infraction committed; forms of evaluation and monitoring of socio-educational students; Human Rights, Socioeducation and the protective system of rights; Social report, Hearings and court decision to maintain the hospitalization of socio-educational students. The results showed how the evaluation of adolescents is carried out by the professional technical team, what are the challenges encountered in the socio-educational system of the state and how judicial decisions to maintain the socio-educational measure (MSE) of hospitalization are sometimes not aligned with the Guarantee System of the Rights of Children and Adolescents (SGDCA), with weak discretion required, not considering the exceptionality and brevity of the measure given the good evaluation.