A periculosidade como fundamento para manutenção da medida de segurança no direito penal brasileiro à luz da Lei 10.216/2001

Abstract

This dissertation aims to question the maintenance of the Institute of Security Measures from the vague concept of dangerousness even more after the new guidelines of the psychiatric reform that have generated impacts in the system of application of measures, giving the possibility of questioning the dangerousness as its foundation. For this purpose, bibliographical research with analysis of documents, legislation, scientific articles, and books on the subject was used. Thus, to achieve the proposed objective, the paper traced the history of the institutionalization of madness and then sought to understand the functioning of security measures in Brazil’s legal system. In a second moment, we analyzed the dangerousness as a legitimizing device of the penal intervention on the bearer of mental suffering. In addition, a reflection was made based on research on the reports of cessation of dangerous work, which showed the arbitrariness in their execution and their lack of scientificity. Finally, it was pointed out that the preponderance of Law 10.216/2001 in the current criminal legislation requires an interpretation that allows the usage of alternative models other than the deprivation of freedom that corresponds to hospitalization in forensic institutions. Hence, it was concluded that the basis of dangerousness is not legally applicable and that it is an indeterminable attribute. Thus, it is concluded that the maintenance of security measures is inconceivable with dangerousness as a legitimizing element, due to the violation of fundamental rights and guarantees, at the same time that it has been proven that this is an expendable characteristic in the evaluation of the person in psychological distress in conflict with the law, from the more certain perspective of the new directions brought by the anti-asylum law.