A natureza jurídica da medida de segurança e a (in)efetividade dos direitos fundamentais das pessoas com deficiência

Abstract

The present work is focused on the analysis of the legal nature of the institute of security measure. Although formally considered a mean of treatment, such an institute, in its application, has characteristics inherent to the criminal penalty. Thus, this doubly stigmatized individual, as crazy and as criminal, ends up in a species of limbo between the tutelage of Criminal Law and the tutelage of Sanitary Law. This indeterminacy can lead to the suppression of rights, because, once the individual is not criminaly attributable, he ends up being excluded from the guarantees related to criminal proceedings and, once he remains in the shadow of "dangerousness", he is not treated as a person with a disability. In this context, the aim of this work is to understand the place of the security measure in the Brazilian legal system in relation to criminal law and its principles, sanitary legislation and directives of implemantation, the International Convention on the Rights of Persons with Disabilities, the growing movement of Psychiatric Reform and to the Federal Constitution itself. As so, this research is essentially qualitative and exploratory in nature. On the other hand, it was verified that the security measure is not currently adequate neither to the idea of sanction nor to the idea of treatment, constituting an obsolete institute, vastly employed based on jurisprudence and that violates the fundamental rights of people with disabilities.