Prevaricação diante da impossibilidade manifesta de prisão em flagrante: impossibilidade de exclusão da ilicitude e da culpabilidade

Abstract

Final course work presented as an article and published by the Journal of Legal Doctrine of the TJDFT (Qualis A4). There are currently criminal factions with a high power to confront the State, in Brazil. Thus, situations occur in which the police officer is in fact unable to make an arrest, which could be understood as the practice of the crime of malfeasance. Objective: the objective is to discuss the exclusion of unlawfulness and culpability of malfeasance in these situations. Method: an inductive approach was adopted, with a monographic bibliographic procedure, using primary and secondary sources. Its relevance lies in the legal security of police officers during ostensive policing and city takeovers. Currently, the penal code provides for situations that exclude unlawfulness and guilt, which cannot be alleged, in the event that it is impossible, due to disparity in offensive power, to arrest in flagrante delicto. The state of necessity could be applied if there were legislative improvements. Result: there is a need to improve paragraph 1 of article 24 of the penal code to provide for the use of reasonableness, which is why it is suggested that the phrase “provided that it could be done reasonably” be added.