Art. 149. When there is doubt about the mental integrity of the accused, the judge will order, by ex officio or at the request of the Public Prosecutor’s Office, the defender, guardian, ascendant, descendant, sibling or spouse of the accused, that he be subjected to a medico-legal examination .
§ 1 The examination may be ordered during the investigation stage, through representation of the police authority to the competent judge.
§ 2 The judge will appoint a curator to the accused, when he determines the examination, the process being suspended, if the criminal action has already begun, except for the steps that may be harmed by the postponement.
Unimputable, semi-imputable, insanity exam, appeals
Non-imputable and semi-imputable: The concept of non-imputable is given by article 26 of the Penal Code : “Exempt from penalty is the agent who, due to mental illness or incomplete or retarded mental development, was, at the time of the action or omission, entirely incapable of to understand the illicit nature of the fact or to determine in accordance with that understanding.” The semi-imputable, by the sole paragraph of this same device: “The penalty can be reduced by one to two thirds, if the agent, due to mental health disturbance or due to incomplete or retarded mental development, was not fully capable of understanding the illicit character of the fact or to be determined in accordance with this understanding”.
Dangerousness must be proven: It is not enough to be unimputable for the application of a security measure. To do so, it is necessary to combine two factors: 1st – that, if it were not unimputable, it would be the case of a condemnatory decision proving the authorship and the crime; 2nd – that dangerousness has been proven. On this topic, see the subtitle Citation of the incapable and injustice in the application of a security measure in the title Citation in the electronic process , in notes to article 351.
Appropriateness of the medical-legal examination: If there are indicative elements in the case file that raise doubts as to the mental integrity of the accused, it becomes mandatory to carry out a mental health examination. Failure to do so results in absolute nullity.
Appropriate remedies: Since there is no evidence in the records indicating the accused’s insanity, it makes no sense to submit him to an insanity examination. Surely, the filing of habeas corpus to prevent the examination is comforting . On the other hand, if there are indications that suggest doubts as to the sanity of the accused, the examination is due and, if requested, if it is rejected, a writ of mandamus or habeas corpus may be filed against this decision .
This article was tacitly revoked, given that article 3-A, introduced into the system by Law n. 13,964/2019, prohibits the judge from substituting the evidentiary performance of the prosecution body . As the probative action of the prosecution (there is no accusatory action on the part of the Public Prosecutor’s Office before starting the process – do not confuse investigative action with accusatory action) only occurs once the process is initiated by means of a complaint, this prohibition concerns the instruction process, and not just the investigative phase.
Official action revoked: This article was partially and tacitly revoked, given that article 3-A , introduced into the system by Law n. 13,964/2019, prohibits the judge from substituting the evidentiary performance of the prosecution body . As the probative action of the prosecution (there is no accusatory action on the part of the Public Prosecutor’s Office before starting the process – do not confuse investigative action with accusatory action) only occurs once the process is initiated by means of a complaint, this prohibition concerns the instruction process, and not just the investigative phase.
Doctrine
Lidiana Figuerêdo Martins Pinheiro : The international protection of refugee children’s rights repositorio.ul.pt. 2015
Paulo Vasconcelos Jacobina: Criminal law of madness: security measure and psychiatric reform . app.uff.br
Sara Cristina Escalhão Gomes : The Protection of Street Children in International Law repositorio.ul.pt. 216
Taís Schilling Ferraz : The importance of working with facts and projecting consequences . Conjure
Jurisprudence
Legality of maintaining a socio-educational measure of hospitalization even with a favorable opinion: The maintenance of a socio-educational measure of hospitalization imposed on the appellant does not constitute manifest illegality or teratology, even if there is a favorable opinion of the interdisciplinary team (RHC 126.205, rel. Min. Rosa Weber, judgment on 3/24/2015, judgment published in the DJE of 4/15/2015 – Bulletin 779, First Panel).
Legitimacy, indispensability of expertise and technical assistant
Legitimacy: The chief of police cannot order an insanity examination. Only the judge can. The judge may order ex officio, or at the request of the Public Ministry, the defender, the curator, the accused himself, the ascendant, descendant, sibling or spouse of the accused. It can be ordered even at the investigation stage, upon representation of the delegate to the judge.
Medical expertise is irreplaceable: The medico-legal examination, carried out by an expert, cannot be replaced by other means of proof, under penalty of nullity. In this way, witnesses, judicial inspection, documents, certificates, expertise borrowed from another process, etc., do not serve to replace the examination, especially since the objective of the examination is to determine what was the mental situation of the accused “at the time of the action or omission ”, according to the indicators contained in Article 26 of the Penal Code.
Technical assistant and requests by the parties: The parties are allowed to submit questions and indicate a technical assistant ( article 159, paragraph 3 ). About skills in general, see article 158 et seq.
Jurisprudence
Incident of insanity and defense opposition: It is not possible to compulsorily determine the incident of mental insanity in the event that the defense opposes its realization ( HC 133.078, rel. min. Cármen Lúcia, judgment on 9-6-2016, DJE de 22-9-2016 – Bulletin 838, Second Panel).
Curator, suspension of the process and prescription
Appointment of guardian: The appointment of guardian should preferably fall on someone trusted by the accused. It could be a relative. It can also be the defender. Failure to appoint a curator to monitor the stage of the process in which the examination is carried out may result in nullity.
Suspension of the process: If the criminal action has already started and the examination is determined, the process is suspended. The same is not true if the examination is determined at the investigation stage. The police investigation is not suspended. Unpostponable steps, notwithstanding the suspension, can be carried out.
Suspension and non-interruption of prescription: There is no provision, neither in article 117 of the CP , nor in any other legal device, that the suspension of the process provided for in this article will suspend, or interrupt, the prescription. Therefore, it is concluded, the incident of mental insanity does not suspend or interrupt the prescription.
