Análise sobre a necessidade do exame criminológico para a progressão de pena à luz dos princípios da humanidade e da individualização da pena

Abstract

This work performs an analysis on the use of criminological examination as a requirement for the regimen’s progression, considering the principle of individualization of punishment and the principle of the humanity. The examination was scheduled as required for granting this benefit, pursuant to the art. 112 of the Penal Execution Law. However, considering the change caused by the Law nº 10.792 / 2003, the wording of art. 112 was modified, removing the criminological exam as a mandatory requirement. Due to the new law, disagreement arose within the doctrine and jurisprudence, which pervade today's discussions about the use of this instrument in the procedure of criminal enforcement. Despite the issue of Precedent 439 of the Superior Court of Justice, and Binding Precedent No. 26, in order to pacify the dissenting position of the superior courts, persist contrary opinions, leaving the criminological examination as an instrument of voluntary nature for granting the convict’s requests, leaving the magistrate chooses, grounded way, its use or not. However, considering the conditions of the Brazilian prison system, and the provisions of our legislation, in particular the Penal Execution Law, we must stress the need for the practice of criminological report, with the aim to achieve the basic objectives of the application of criminal punishments and, consequently, the Penal Execution Law, namely, the adequate social reintegration of the sentenced.