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The unconstitutional of the indeterminacy of the security measure maximum deadlines

Grant number: 12/20727-0
Support Opportunities:Scholarships in Brazil - Scientific Initiation
Effective date (Start): February 01, 2013
Effective date (End): January 31, 2014
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal Investigator:Fernando Andrade Fernandes
Grantee:Carolina Sabbag Salotti
Host Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

This paper tries to reflect the question about the indeterminacy of the maximum deadlines period of the security measure. Nowadays, according to our criminal code, the security measure detainee stay interned or under medical treatment while their dangerousness exists, which is explicit, although, in the article 97, §1º. This idea transmitted through our legal system agrees with the validation, finalities, and the probate of the measures. And they are the issues (validation, finalities, and the probate) that make the main difference between the jail terms and the security measure, at the last analysis, the responsible for the determination of the maximum deadlines in those and for the indeterminacy of the deadlines in the others. Nonetheless, not determining these measures with maximum limits previously fixed, the criminal law offends a bunch of constitutional principles, that cannot be permitted. Facing this contradiction pointed here, the problems concerned about the maximum deadlines period of the security measures must be solved, not only as a matter of adequacy of the criminal system to our Federal Constitution but also as a way of putting the incompetents and the ones who are not totally incompetents, historically marginal characters of our law, in the center of the legal discussion.(AU)

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