Art. 151. If the experts conclude that the accused was, at the time of the infraction, irresponsible under the terms of article 22 of the Penal Code, the process will continue, with the curator present.
Report, proper and improper acquittal, proof of dangerousness
The judge is not restricted to the conclusions of the report: The judge is not restricted to the conclusions of the expert. He may or may not accept them, in whole or in part. His decision, however, must be justified (see Article 182 ).
Absolute absolution: If the non-imputable person ( article 26 of the CP ) responds to criminal proceedings, and in the end the magistrate concludes that he did not commit a crime, he must absolve him (acquittal) without the application of any restrictive measure (penalty or measure of security). Crime is a typical, illicit and culpable fact. If the fact is not typical, or if there is an excluding cause of unlawfulness or culpability other than non-imputability, there is no crime, and proper acquittal is due.
Improper acquittal of the unimputable: If the magistrate concludes that the accused has committed a crime, that is, a typical, illicit fact, and if the other elements of guilt are present, except imputability, article 26 of the CP applies . Article 97 CP provides for a security measure in case the foreseen punishment is imprisonment: “If the agent is unimputable, the judge will order his/her hospitalization (art. 26). If, however, the fact envisaged as a crime is punishable by detention, the judge may submit it to outpatient treatment.” An old dogmatic, fortunately outdated, maintains that there is a “legal presumption” of dangerousness in the case of crimes punishable by imprisonment, and for this reason the security measure is applied. Well, if not even science presumes the dangerousness of insane people, how could the law do it?! What has been verified is that the judges have examined case by case to decide the best treatment to be given. Non-imputability and abstract prediction of imprisonment do not necessarily mean imprisonment, according to jurisprudence. Register the freedom and margin of action that is conferred to the magistrate with the paragraph 4 of article 97 of the CP: “At any stage of outpatient treatment, the judge may determine the agent’s hospitalization, if this measure is necessary for curative purposes.”
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.
Serious problem with the cessation of dangerousness exam. Absence of secrecy:This issue concerns execution. However, given its importance, we will deal with it here. The identities of the physicians/experts who carry out the cessation of dangerousness examination should be protected by external secrecy. Doctors are subject to the most innumerable disorders when they attest to the cessation of dangerousness and, following release, the inmate commits a new crime. Cases of this order, when disclosed in the press, cause deep and serious inconvenience to the professional life of the physician. Without the protection of secrecy, the tendency of physicians is to persist in acknowledging dangerousness in successive cessation examinations. The assessment of dangerousness concerns probabilities. It is impossible to predict human action. The expert needs to be free of fears to make a correct assessment. As long as I can be hostage to the prophets of the past, your freedom is very limited. The security measure is distressing. It is not uncommon for inmates to die of old age while in prison. Not because they are dangerous, but because they are insane.
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).
Semi-imputable, curator and nullity of the procedural records
Conviction of the semi-imputable: Recognized that the accused is semi-imputable, his sentence can be reduced from one to two thirds, according to the sole paragraph of article 26 of the CP . For the semi-imputable convict who needs special curative treatment, the custodial sentence may be replaced by hospitalization, or outpatient treatment, for a minimum period of one to three years, under the terms of article 97 of the CP and its paragraphs .
The presence of a curator: The judge will appoint a guardian for the accused, when determining the examination, the process being suspended, if the criminal action has already begun, except for the steps that may be impaired by the postponement, in accordance with paragraph 2 of article 149 . Once non-imputability or semi-imputability is recognized, as the law does not distinguish, the curator must have witnessed all procedural acts accompanying the accused. The literal application of the present device (Article 151) may lead to the nullity of the process. It is expressed in article 151 that the process will continue, with the presence of the curator. Note well. The accused was insanity. Admitted that it is someone with a mental illness or incomplete or retarded mental development (non-imputability), or with a mental health disorder or with incomplete or delayed mental development (semi-imputability), the instructional acts carried out prior to the appointment of curator do not have value, since the accused did not have conditions to promote his defense. Therefore, it is not enough to appoint a curator with the continuation of the process. All instructive acts carried out without a curator must be redone, under penalty of nullity.