Navegando por Assunto "Direito penal"

Agora exibindo 1 - 15 de 15

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Alternativas penais e democracia: a democratização da justiça criminal pela política de penas e medidas alternativas: um estudo de caso no Tribunal de Justiça do Estado do Pará, 2008-2010
(Universidade Federal do Pará, 2010) MEDEIROS, Josineide Gadelha Pamplona; VAZ, Celso Antônio Coelho; http://lattes.cnpq.br/0547983721448176
This dissertation brings forward the results of a social and legal investigation on the democratization process of Criminal Justice, as applied amidst the punishment policies and alternative sanctions in the area of criminal execution. Starting out with the assumption that democratization denotes a process of widening opportunities for participation by the citizenry in public affairs, it is understood that such a phenomenon takes place in Brazilian Judiciary as a function of on-going transformation in the role of Justice which is on course to becoming a public space where citizens tend to ever more dramatize social and inter-subjective relationships through the language of law, especially in the realm of fundamental rights. As though that was not enough, the judiciary community is also aware nowadays, in some segments, of certain frameworks in which citizens alien to the legal field have started to partake in the process of judicial interpretation and decision-making, thus extending the circle of players enabled to speak on the law, whereas such an initiative was formerly monopolized by professional jurists, mainly magistrates and by the courts. One such venue seems to be the execution of punishment alternatives in Brazil, and this is so because the National Policy on Punishment and Alternative Measures, inspired by the Tokyo Standards, has fostered the adoption, within the Judiciary, of equipment and public services for execution of punishment and alternative measures which imply, on one hand, the spreading through the legal field of concerns of political and social nature with fundamental rights of the enforcers and, on the other hand, the opening of punishment execution to participation by professionals of nonlegal areas and by community cells involving definition, overseeing and monitoring of punishment alternatives, including the availability of wider opportunities for enforcers to express their opinions and formulations on crimes, penalties and such measures. Within the dissertation reach, such a democratization framework is investigated as from the experience of the Court for Punishment Execution and Alternative Measures with jurisdiction over the Metropolitan Area of Belém, before which an empirical survey was carried out with the purpose of grasping, mainly, the standpoint of Agents of the Judiciary, notably of those working with execution of punishment and alternative measures, to the extent that the legal, social and political burden of performing within the arena of punishment alternatives goes, under a perspective leaning towards democratization in the judicial field.
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Análise da politica sobre drogas no Brasil a partir da criminologia crítica
(Universidade Federal do Pará, 2016-05-16) ROSA, Sérgio Antônio; RODRIGUES, Saulo Tarso; http://lattes.cnpq.br/8585243462003260
The goal of this dissertation was to analyze the Brazilian legislation on drug policy, analyzing the different regulatory treatments dispensed by law No. 11,343/2006; the counterpoint of criminal justice and justice and the effectiveness of Therapeutic Justice. The problem that aimed to do the research is: How the Brazilian legislation treats the different drug cases, in terms of penalty? The treatment to the dealer, the dealer and the drug user may considered fair and ressocializador, IE, you can retrieve the individual and free him from drugs, in addition to reinsert it in society? What is more effective, Therapeutic justice with the insertion of ' shame ' treatment or prison drug user in Gen pop? From the point of view of the proposed research, method follows the inductive-deductive logic, as it makes deductions of existing standards. As for data collection, the research qualifies as literature review, whose secondary data obtained in the Federal Constitution, Codified laws, ordinary legislation, doctrine and jurisprudence, books, articles and reports, among others. This is a literature review based on articles already published in the literature on the subject in question. It is preferable that the person comply with a feather or alternative treatment, instead of going to prison, where the biggest criminals are and, because of this, view your linked life irreparably to the world of crime. Law No. 11,343/06 is the path of legal maturity. In the same sense, the doctrine behind subsidies sufficient to resolve the issues. Nevertheless, the law has more positives than negatives, and only the practical analysis of the individual case will make possible a better interpretation of its rules.
Acesso aberto (Open Access)
Bem jurídico e princípio da proporcionalidade: uma análise crítica da pena em abstrato
(Universidade Federal do Pará, 2010-05-20) SANTOS, Manuela Bitar Lélis dos; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
This research shows that there are some dispositives in the criminal law where the penalty in the abstract is disproportionate, either a lack of a well-deserving of legal protection law or because the quantum of the penalty does not fit the riteria of proportionality. It presents the “bem jurídico penal”, exposing its evolutionary synthesis, its concept, the principles of minimum intervention and offensiveness, as well as issues relevant to the existence of legal rights supraindividual criminal and constitutional issues of taxation of criminalization. It analyzes the principle of proportionality, developing its concept, content, its historical origin and evolution, the constitutional dedication and nomenclature in comparative law. When it refers to the content of proportionality, it adopts the current that presents the subprinciples suitability, necessity and proportionality in the strict sense as fundamental aspects of proportionality in the broad sense. It brings some criminal law examples that fall outside the rule of proportionality, considering the legal interest in care. It concludes that it is necessary to fit the Brazilian criminal law with the parameters of proportionality and to the requirements of the legal doctrine of “bem jurídico penal”, decriminalizing some conducts or adjusting the penalty in the abstract.
Acesso aberto (Open Access)
O controle de constitucionalidade da pena desproporcional em busca da resposta certa
(Universidade Federal do Pará, 2015-10-16) PICKERELL, Manuela Bitar Lelis dos Santos; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
The research notes the need to accomplish in Brazil the judicial review of disproportionate penalty. If the stain pen is in jeopardy of conduct, the judge must acquit the defendant. However, if the stain remains at excessive quantum of sentence in the abstract, then the judge should disregard the sanctioning secondary rule applying to the case another penalty, withdrawal of paternal criminal legal system, which is proportional to the present situation. The Dworkin’s theory allows this judicial review to show that a decision leading to the principles of the law of the discussion forum devoted to democracy, and not vice versa. Moreover, the present law as an argumentative practice that aims to give the case the right answer, which will be achieved through a constructive interpretation of the moral principles of the community, Dworkin tie this election of the new sentence, away from the judicial decisionism. For the election of substitute penalty, the judge must find the settlor principle of incrimination, seeking it in another criminal type. This will be worth (right answer) to apply to the case.
Acesso aberto (Open Access)
Das ruas para o sistema penal: "outsiders" e mídia no contexto das manifestações urbanas
(Universidade Federal do Pará, 2018-02-19) FERREIRA, Tainá Ferreira e; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
The fragility of the Brazilian democratic state is perceived through constant difficulties for a guarantee of fundamental rights, and this scenario has just mobilized a population to seek ways, albeit informal, to express their demands. In 2013 and 2015, in the city of São Paulo, events occurred that exemplify the phenomena of urban manifestations, not our last years, and which became a public security agenda in the mass media. Based on these findings, this paper proposes a solution carried out by means of mass communication, during the occurrence of urban protests, a risk assessment. Through the analysis of essays by Non Governmental Organizations (NGOs) and international entities, an analysis of the two criminalization processes is sought, which the subjects, understood in the light of the Touraine concept, were exposed and what role the media play in this context. Among the conclusions obtained, it is worth noting that the media, as an informal agency of the penal system, through a work that does not prioritize the plurality of sources and thus fosters the creation of stereotypes, contributes to a criminalization of the subjects involved in the analyzed events. Moreover, the existence of a criminal policy in place of a criminal policy is seen as an obstacle to the confrontation of discourses of criminal recrudescence based on the creation of enemies.
Acesso aberto (Open Access)
Delação premiada e decisão penal: de um modelo eficientista a um modelo de integridade
(Universidade Federal do Pará, 2013) BRITO, Michelle Barbosa de; PINHO, Ana Cláudia Bastos de; http://lattes.cnpq.br/3470653249189577
This work studies the plea bargaining in Brazilian law, with a focus on criminal justice that addresses the institute. The further examination of the elements that contributed to the introduction and expansion of plea bargaining in the current legislation reveals that it is a legal mechanism that, notwithstanding its inquisitorial, has been used to meet one of the guidelines imposed by the neoliberal environment installed in contemporary societies: the pursuit of efficiency in all forms of State action, even in adjudication. To exalt the "good" consequences of the institute, its benefits for combating crime, as well as lower costs for research and production probative, which demonstrates a pragmatic conception of law, in which fundamental rights considerations do not occupy any position privileged. The empirical research has examined the judicial approach taken by the High Courts and the Courts of Justice of the State Institute of plea bargaining, indicating the presence speechwriter judged on efficiency and the absence of discourses on the fundamental rights of the accused, either snitch, be denounced. Regarding plea bargaining before the finding of a jurisdictional action guided by a model efficientist, it is questionable whether such a model fits the paradigms set by the Constitution of 1988, notably with regard to the principles noble to the adversarial system. The analysis of the problem presented is performed based on the theoretical framework derived from the conception of law as integrity and Ronald Dworkin aims to propose an alternative way criminal justice efficientist the model, in which the first commitment is to the realization of fundamental rights.
Acesso aberto (Open Access)
A expansão do direito penal: os reflexos da influência midiática no processo de criminalização primária
(Universidade Federal do Pará, 2017-07-12) SOUZA, Luciana Correa; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
This work aims at analyzing the reflexes of the media influence in the process of primary criminalization on the criminal expansionism and its compatibility with the model of containment of the criminal repression of the Democratic Rule of Law established with the Federal Constitution of 1988. For this, In the first chapter, the approach of the theoretical basis necessary to understand the functioning of the mass media as components of the cultural industry, as well as the study of the media in the society of the spectacle, under the prism of the spectacularization of the news, is realized. In order to evidence the mercantile character of her on the crime. In the second chapter, we examine the processes of primary and secondary criminalization, as well as the development of the notion of selectivity and reflection on the latent functions of the penal system. Subsequently, in the third chapter, an appreciation of the process of construction of reality by the mass media is carried out, at which moment the media criminology and the discourse of media criminal populism in Brazil are discussed. At the end, in the fourth chapter, we study the reflexes of punitive populism in the legislative plane, for that, explores the bill 4.850/2016. Finally, based on the results of the study, the legitimacy of the manifestations of the Criminal Law of the enemy, in the legal system, is analyzed with the model of containment of criminal repression, typical of the Democratic Rule of Law and, particularly, with the Federal Constitution of 1988.
Acesso aberto (Open Access)
Garantismo e sistema penal: crítica criminológica às prisões preventivas na era do grande encarceramento
(Universidade Federal do Pará, 2016-04-28) SILVA, Adrian Barbosa e; PINHO, Ana Cláudia Bastos de; http://lattes.cnpq.br/3470653249189577
This work has as central issue the application of pretrial detention by judicial agencies in the context of the Brazilian criminal justice system. Starting from the premise that the criminal justice systems located in Latin American margin, the periphery of the neoliberal global capitalism, lack legitimacy due to structural factors, in the first chapter, it takes place kind of “general radiography” of the Brazilian penal system tensing it’s official programming, directed to protect human rights by means of combating crime, with the operational reality of their punitive agencies that operate in real reversal, when violate them, that is, opposite to what is proposed, and the great incarceration of the main problems of this reality, occupying the central role pretrial detention for both. Seeking to highlight the close relationship between the application of this institute with the national problem, there was analysis of all habeas corpus judgments of the Court of Justice of Pará, on pretrial detention during the year 2015. Once verified the hypothesis that this cautionary prison is at the confluence of the paraense penitentiary system data with the results of empirical research, essentially dysfunctional to cautelaridade, it passes the prison to be the rule and freedom the exception. In the second chapter, it seeks to theoretically describe the problem in order to not fall to the objectivity of the visible, far beyond the one shown on the data collected and, from the development of problematizing criminological theory (critical criminology), in particular produced in Latin America, it seeks to unveil the existing real functionality, but hidden behind the application of the precautionary prison (unequal social control through penalty anticipation, enemies containment and social defense), and representative decisions of three decision models were analyzed, presented in the first chapter and theoretically studied in the second. Since a critical model of criminal sciences, surpassing the criminological positivism and the belief in the ideology of social defense, criticism proposes a unique and questioning approach to the problem, requalifying the jurist's role (critical jurist). Finally, the last chapter, in view of the considerations made, and qualitative contribution afforded by “criminological magnifying glass” approach is carried out from the warrantism theory which, seen as a political-criminal strategy (methodological approach), nevertheless be open to criticism (especially by criminology), shows interesting response mechanism to delegitimization and, as regards the specific case of pretrial detention is undoubtedly a possible and viable tool for reducing damages from hiperincarceration logic. Since the rescue of historical-foundational perspective of traditional warrantisms to its epistemological reconstruction in the work of Luigi Ferrajoli, it seeks to finally demonstrate the real possibility of reception and application of warrantism criticism of legal foundations authorizes of preventive penal protection for before of (dis)functionality of penal control, reduce prisons, guarantee rights, extend freedoms and save lives.
Acesso aberto (Open Access)
O “inimigo” de Jakobs desvelado pela criminologia crítica
(Universidade Federal do Pará, 2016-08-29) PEREIRA, Fábio de Sá; DELUCHEY, Jean-François Yves; http://lattes.cnpq.br/2530487459645226
The research aimed to analyze the use of the terms citizen and enemy by the theory of penal law of the enemy from Günther Jakobs , linking them with the contractualist political theories from Hobbes and Rousseau. It was defined the uses of this terminology the work reveals the construction of these terms as dogmas of criminal law, confronting them with the criticism from the Criminology Review. It was aiming to evidence the uses of dogmatic penal law of the enemy in the institutions, the research analyzed the criminal discourse of the magistracy and the public prosecutor in respect to the criminal theory of the enemy, pointing out the specific qualities of citizens and the contemporary enemies. The development of research used a deductive methodology of exploratory nature, putting them against the theoretical arguments.
Acesso aberto (Open Access)
Mídia e violência: os discursos construídos pelo programa de rádio Estação Direitos sobre maioridade penal
(Universidade Federal do Pará, 2016-03-01) ESTEVES, Lorena Cruz; COSTA, Luciana Miranda; http://lattes.cnpq.br/1310961057480638
Several Brazilian publications inform against the fragmented, superficial and decontextualized treatment when the media deals with adolescents who have committed infringments (CARLSON & VON FEILITZEN, 1999; 2002; BALLAS..., 2000; NJAINE & VIVARTA, 2005; ANDRADE, 2006; NERY, 2008; ANDI, 2005, 2011, 2012a, 2012b, 2013; ROTHBERG, 2014; VARJÃO, 2015; ESTEVES et al., 2015). By analyzing the bibliographic research, it appears that media coverage is biased negative and often violates the human rights of adolescents, guaranteed by the Statute of Children and Adolescents (BRAZIL, 1990). This type of coverage ends up generating diversified directions on the perception that Brazilian society has regarding adolescents in conflict with the law, influencing the public debate on reducing the penal age. From this context, this research defined as the object of study the Estação Direitos radio show, produced by the non-governmental organization Radio Margarida, for presenting itself with a different proposal from the allegedly commercial media. In this sense, the overall goal was to identify whether and especially how the program is countered to a dominant discourse, which permeates the collective imagination, without repeating the most common discourse used by the media, according to existing literature, on the coverage of offense and criminal responsibility. As methodology, the corpus of the research was delimited from the cut of the 5 programs that directly addressed on the subject and also issues related to it. The analysis method was the french Side of Discourse Analysis (BRANDÃO, H., 2012; FOUCAULT, 1995; MAINGUENEAU, 1987). Based on the methodology adopted, the intention was to make a correlation between the discursive formations found with the ideological formation, since the speech is one of the instances where ideological materiality is concretized (FIORIN, 1995). So this is an ex-post-facto research, which studies the fact that has already happened (PANCERA, 2009), but it helps to map an entire discursive memory regarding an already-said on the subject, which may contribute to future research in area. The final remarks indicated that the Estação Direitos station radio show, treating about legal age, managed to achieve the proposed goal which was to address the issue in a different way from the undertaken routing by the mainstream media, bringing to light, other perspectives with a targeting that went against the Statute of Children and Adolescents, despite exalting some speeches, to the detriment of others, and little to address the rights violations committed by the mainstream media. In general, it can be seen that the programs analyzed, prioritized a differentiated approach, covering speeches that have little space in media coverage.
Acesso aberto (Open Access)
Para além do garantismo: uma proposta hermenêutica de controle da decisão penal
(Universidade Federal do Pará, 2011) PINHO, Ana Cláudia Bastos de; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
Assuming that, in Brazil, the theory of criminal justice is not consistent, the present work argues that the epistemology of juridical garantism, held by Luigi Ferrajoli, has limitations that separate it from the practical world, and therefore hinder the development of a theory able to limit the power of the criminal judge. Although the theory of guarantism gives special attention to the interpretive relativism, by proposing a technique of language's formalization to reduce situations of uncertainty, it still admits an insuppressible margin of discretion (always pro reo). The purpose of this thesis is the overcoming of this semantic model of perception of Law by a hermeneutic understanding of the juridical phenomenon. Based on the philosophical hermeneutics (Hans-Georg Gadamer) and the theory of Law as integrity (Ronald Dworkin), this research endorses the hypothesis that the Law is not the result of findings (conventionalism), neither of inventions (pragmatism). In other words, Law is not written somewhere in the past, neither is what the judges think it is. The Law is an interpretive social practice, it is the result of the best possible moral argument. By articulating relevant concepts of Gadamer (such as prior foundations of the understanding, merging of horizons, tradition, dialogue, experience, finitude and language) with the analysis of juridical integrity of Dworkin, this research - without the pretension of correcting Ferrajoli‟s garantism, but to overcome the eventual limitations of a semantic theory of Law - presents the hermeneutics as a privileged path to constrain the criminal decision.
Acesso aberto (Open Access)
Periculosidade e loucura no sistema penal: a percepção dos juízes acerca da periculosidade a partir da analise de sentenças de medida de segurança no estado de Mato Grosso
(Universidade Federal do Pará, 2016-07-29) LOURENÇO, Renata; DELUCHEY, Jean-François Yves; http://lattes.cnpq.br/2530487459645226
This study sought to understand the perception of the concept of dangerousness and persistence of the concept of dangerousness presumption associated with madness in implementing decisions of the security measures from legal discourse emanating from the issued sentences by judges, in order to be the dangerousness the fundamental requirement for the application of this legal instrument. Through the historical context was possible to understand that the concept of dangerousness since its formulation in criminology, under the positive school of law was incorporated by criminal law as legitimizing basis of punitive practices and public security policies with the reasoning of the thesis of the previous defense of society. Punitive processes will delineating to meet the interests of certain social groups involved in each historical period, focusing on specific groups, and in this context has established the concept of madness violence binomial such ingrained currently up in our society. sentences and psychiatric reports processes in compliance with security measures were analyzed in the regions of Cáceres, Cuiabá and Lowland Grande, a total of 36 cases examined. The process analysis is focused on the study of the initial sentences of application of custodial security measures and progression to the outpatient and psychiatric reports that support decisions of application security measure judges. From the construction of the theoretical framework and analysis of sentences was concluded that the issue of dangerousness, although it is at first glance relegated to the legal universe, is not limited to this, since it presents as a key element in the social organization, in the grounds of the thesis defense of society and the legitimacy of punitive state and political and economic order established.
Acesso aberto (Open Access)
Proteção aos direitos humanos e inclusão social do grupo vulnerável representado por pessoas submetidas à medida de segurança, por imposição da lei penal brasileira
(Universidade Federal do Pará, 2013) BRITO, Paulo Juaci de Almeida; RAIOL, Raimundo Wilson Gama; http://lattes.cnpq.br/6271053538285645
Based on the assumption that the mental disorders patients treatment, disciplined in the Brazilian legal system, prevail by the segregation resulted by the security measure obligation due to the practice of law facts typified as crimes. The social inclusion is one of the Federative Republic of Brazil essential goals and the Human Dignity, the citizenship and the political plurality are some of the basic principles informers of Democratic State of Law. For an inclusive socially treatment of mental disorders patients, it needs to give them socializing ways and citizenship rights exercises, on equal terms to all free and able citizens, because any State behavior that hinders or impedes the treatment and reduce their fundamental rights affront their dignity, is in a country legal system conflict. After the Law 10.216/2001 advent, the State can’t lay on the penalties security measure indefinitely anymore, otherwise it causes serious damage to the Human Dignity, because, if it aims the mental patients treatment, this one only admits this person hospitalization for the necessary time to stabilize their mental processes, with a view to provide his social life. Thereby, it establishes in the country the lunatic asylums judiciary extinction tends. The social life and the citizenship exercise are necessary parts of these people treatment, so the best procedure applied to the people with mental disorders who have committed facts typified as crimes in Brazil takes place in Minas Gerais and Goiás States, which develop singled comprehensive care programs, that provide a multidisciplinary team, based on the bioethical intervention model, the opportunity to play an intermediary role between the patient and: a) the Judicial Courts; b) a psychosocial care system that replaces asylums; c) clinics and hospitals that realize the hospitalization and treatment; and d) the general society and family in special. This program's efficiency made recurrence fall to 6% in Goiás State and less than 3% in Minas Gerais State. In other States it varies between 60 and 85%. This is the socially inclusive security measure. Finally, the research proposes some practical measures for social inclusion, which can be performed by the socially inclusive security measure.
Acesso aberto (Open Access)
Reinvenções e permanências do sistema penal brasileiro: a criminalização dos grupos de poder como novo marco de renovação e fortalecimento do controle punitivo
(Universidade Federal do Pará, 2018-12-03) BRITO, Michelle Barbosa de; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
In recent years, the Brazilian criminal justice system has witnessed a movement focused on changing, or expanding, the trend of punitive agencies to punish subjects targeted by their actions. Criminalization processes have been intensified towards subjects whose positions were historically untouched by the punitive justice and, mainly, by the prison system. Such intensification process highlights the need of analyzing and investigating an alleged change in the understanding about the (undeclared) role played by criminal law as instrument used to socially exclude and neutralize unwanted groups. Based on the criminological-critical perspective, we collected and analyzed data about the actions taken by agents participating in control instances involved in the secondary criminalization of people who, despite their political and/or economic power, have been targeted by the punitive justice power for committing white-collar crimes. Factors contributing to the social construction of “criminality” were also analyzed, with emphasis to aspects associated with the public perception about the criminal matter, with the media, with criminal policies, as well as with social, political and economic contexts. The present research enabled reading and understanding about the aforementioned problem by taking into consideration elements of historically-based punitive endeavors. It was possible concluding that the movement witnessed in recent years towards the increased criminalization of individuals who hold political and/or economic power, and commit white-collar crimes, does not represent a punitive turning-point that tends to equal the incidence of criminal interventions. On the contrary, it integrates the logic that has outlined the exercise of punitive power, which was reinvented to suit the criminalized-subject conditions and the contemporary context.
Desconhecido
Violência de gênero e crime passional: um estudo do caso Nirvana
(Universidade Federal do Pará, 2009-08-28) SILVA, Fernando César Louzada e; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
The present dissertation studies the solution given by the Brazilian Judiciary System concerning to gender conflict which is in the core of judgements of passional crimes when the victims are women. As empirical analysis it was chosen the Nirvana Case, in order to analyse gender conflict in Belém. This analysis begins with the concept of truth, and related difficulties for its apprehension because there are models of behavior for gender’s roles, as well as the framing procedures whether in the Police Stations or in the Courts. Essential categories are established for the understanding of the issue, such as the concepts of emotion and passion; passional crime; basic notions of Criminal Law and Criminal Law Process. It also aims to evaluate, in the vigency of the Law 11.340, called Maria da Penha Law, the repercussions of androcentrism on decisions of Grand Jury, which are made through discriminatory discourses and through attorney’s defense strategies in Court, which reborn the legitimate defense of honor. From this analysis, it will be proposed solutions in order to give adequate responses against this kind of decision, and according to the current status of the Human Rights and the Democratic State of Law.