Perda de memória pós-crime: uma análise neurocientífica, finalística e processual

Abstract

The present work seeks to identify the legal consequences for the case of an individual who commits a crime and, during the trial or execution of the sentence, suffers from amnesia. In order to do so, an in-depth study of the various theories of punishment is carried out, culminating in the reduction of violence by Luigi Ferrajoli. Taking, therefore, using the author’s system as a basis, it is concluded that the punishment of an individual who no longer remembers the crime committed is unfounded. The solutions found by different Common Law countries for post-crime memory loss will also be analyzed. The legal treatments proposed in these countries consider that an accused who suffers from amnesia regarding the crime he committed is not able to defend himself efficiently, so he is considered incompetent to stand trial. At this point, the Brazilian criminal law and criminal procedure will be analyzed with regard to the issue of post-crime amnesia, concluding that it is insufficient or even non-existent. Based on the current articles 149 and 152 of the Criminal Procedure Code, a proposal for its reformulation will be evaluated, proposing a wording change that includes, in addition to the accused who suffer from mental insanity, those who suffer from memory loss. Furthermore, it is intended to resolve other controversial issues about the indefinite suspension of the process provided for in article 152. Finally, for cases of accused who lose their memory while serving their sentence, article 183 of the Penal Execution Law will be evaluated, and the creation of a new article for this law will be proposed, dealing specifically with the case of amnesic convicts.