A indeterminação do prazo da medida de segurança e a violação aos princípios limitadores do direito de punir

Abstract

This article discusses the indeterminate term of detention and treatment orders established by legislators, who fixed only the minimum of one to three years. The existing gap in our legislation clearly constitutes an offense to constitutional principles, and it is imperative that an upper limit be established in order to guarantee the rights of legally incompetent persons. To this end, this study examines orders of detention and treatment as a State-imposed sanction for legally incompetent persons who commit an unlawful act for which they are not culpable. As a consequence of the lack of an upper limit to the orders, the following principles are violated: the principle of the dignity of the human person, the principle of legality, and the potential violation of the prohibition of sanctions of a perpetual nature. Furthermore, the decisions of the Brazilian Federal Supreme Tribunal and Superior Tribunal of Justice are suggested as parameters to try to solve the problem caused by our legislation’s failure to set an upper limit.