ANÁLISE DO REGIME JURÍDICO BRASILEIRO DESTINADO ÀS PESSOAS COM TRANSTORNOS MENTAIS EM CONFLITO COM A LEI, SOB A ÓTICA DOS DIREITOS FUNDAMENTAIS

Abstract

MAGGIONI, Nádia B. F. S. Analysis of the Brazilian legal regime for people with mental disorders in conflict with the law, from the perspective of human rights. 2021. 163 f. Dissertação (Mestrado em Direito) – Faculdade de Direito, Universidade Federal de Mato Grosso do Sul, Campo Grande.

This dissertation deals with mental disorders, the fundamental human rights of the individuals who detain them, and their relationship with Brazilian Criminal Law, in order to analyze the treatment of people with incarcerated mental disorders, from the point of view of dignity human rights advocated by the Brazilian system. The problem consists in examining whether the current Brazilian criminal legal regime for the treatment of unimputable persons is compatible with the fundamental human rights applicable to them, guaranteeing them minimum conditions of dignified existence. The general objective is to analyze the Brazilian legal treatment of people with mental disorders who commit crimes, their incompatibility with the fundamental human rights that protect these individuals, and to bring doctrinal proposals and criticisms of legal treatment based on human dignity. The study of the theme is justified by the wide vulnerability of this population, which is usually subjected to several human rights violations, combined with the ineffectiveness of current normative instruments to fulfill the main purpose for which they are intended, which is treatment. The bibliographic method was used, with a descriptive, qualitative and deductive technique, allowing analysis of data collected in articles and documents, such as legislation and research with statistical data, already published in scientific bases, supported by authors who lectured on the subject and supported by relevant legislation. As results achieved, it was observed that there was a paradigm shift in the treatment of people with disabilities, including people with mental disorders, who ceased to be seen as an object to be cured to be seen as a subject of rights, with a place voice and decision-making power; the cure is no longer sought, but its social insertion. In addition, the psychiatric reform movements of the end of the 20th century, which resulted in Law no. 10.216 / 2001, changed the rule of treatment with long-term hospitalizations in asylums, and established that psychiatric hospitalizations must be temporary and exceptional, and the rule becomes outpatient treatment in an open environment, transforming the penal and procedural legislation about of the incomputable, with the tacit revocation of several devices. There is also a proposal to apply the penal and procedural penal regime to the unimputable, so that it can enjoy several of the legal benefits intended for the imputable, and there are also analyzes of intermediate proposals for criminal liability of the unimputable, with mental disorder being a cause of decreased sentence. Finally, there are programs from some Brazilian states that have achieved great success in the social insertion of the incomputable (PAI-PJ, PAILI and PCIPP).