A redescoberta da perspectiva da vítima nos crimes de computador: uma análise vitimológica dos delitos informáticos e uma crítica ao garantismo penal hiperbólico monocular

Abstract

Victims of crime have grown in recent years, increasing violence with the strengthening of criminal organizations, coupled with state inefficiency are causes of this. The state has neglected protection, assistance, and robust victim-focused legislation, especially that of computer crime. The victimized victim in the virtual environment is a species of very vulnerable victim, both due to the complexity of the environment where the crime occurs and the lack of knowledge of the user. It is important to note that, as a rule, access occurs from an environment that he feels physically safe, such as from his home or work, a false sense of security that is established, in his psychological, as the virtual environment. On the other hand, Luigi Ferrajoli's criminal guaranteeism has focused only on the protection of the victim in the face of state misconduct. For this reason it has received criticism, including being called Monocular Hyperbolic Criminal Guarantee, hyperbolic because it is disproportionate and monocular because, in practice, it protects only those who commit crimes. In the present study, we understand that the maintenance of such guarantees to the delinquent is necessary, mainly to comply with the constitutional principle of human dignity, prescribed in item III of art. 3 of the Federal Constitution, however, the understanding must be broadened to include other procedural subjects such as the victim and the witnesses. Thus, in order to protect the rights of victims, especially those violated in the Internet, we investigate the existing laws on the subject, such as the Carolina Dieckmann Law and the Internet Civil Marco, we analyzed the never regulated art. 245 of the Federal Constitution and Bill 3503 of 2004 that deals with the aforementioned article and creates the National Fund for Assistance to Victims of Violent Crimes and examined the determination of Federal Law nº 12.735 /12, partially fulfilled, to create specialized sectors in the fight against criminal action in computer networks in the organs of the judicial police, all in order to move towards Integral Criminal Guarantee, in a phase of rediscovery of the victimized person.