Violations of health measures in the pandemic context and criminal law: a comparative analysis between the crimes of infraction of preventive sanitary measure and specific disobedience

• Grant number: 21/14723-0
• Support Opportunities: Scholarships abroad - Research Internship - Scientific Initiation
• Start date: April 30, 2022
• End date: July 29, 2022
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Flávia Siqueira Cambraia
• Grantee: Adriana Rodrigues de Menezes
• Supervisor: Sónia Mariza Florêncio Fidalgo
• Host Institution: Centro de Ciências e Tecnologia. Universidade Presbiteriana Mackenzie (UPM). Instituto Presbiteriano Mackenzie. Campinas , SP, Brazil
• Institution abroad: Universidade de Coimbra (UC), Portugal
• Associated to the scholarship: 20/15913-5 - Compulsory vaccination against COVID-19? An investigation in the light of the foundations and limits of Criminal Law, BP.IC

Abstract

With the spread of COVID-19, the world was forced to adopt measures to curb the spread of the disease. In this scenario, Criminal Law becomes a way to impose sanctions on those who violate sanitary measures, to inhibit, for example, non-compliance with preventive conduct stipulated by the Public Power. In Brazil, article 268 of the Penal Code, which establishes the crime of infraction of preventive sanitary measure, is invoked to repress the transgressors of the adopted measures, despite the objections arising from the indeterminacy of the penal type, which is a blank penal law. In turn, in Portugal, the crime of disobedience gained notoriety in the pandemic, leading to the creation of a specific form of the type (art. 3, nº 2, Decree nº 2-A/2020), which had already been revoked, which turned to the pandemic of COVID-19. This work aims to compare such crimes, regarding the dogmatic relevance of both, in order to investigate what would be the best solution to the problem of transgressions of COVID-19 preventive measures in Brazil: a comprehensive norm or a specific norm. The objective is to analyze which tort structure would be more consistent with the criminal constitutional principles, allowing, at the same time, the protection of the legal assets in question in a pandemic scenario. This work will be guided by the hypothetical-deductive method, supported by the comparative; it will also have a qualitative, exploratory approach, with bibliographical and documental analysis. The work is expected to contribute to the debate on the use of Criminal Law in pandemic and health emergency scenarios, observing the principle of legality. (AU)