Exame criminológico: o equívoco na aplicação do instituto

Abstract

In this dissertation we developed a study with respect to the medical examination provided for in the Brazilian criminal law, the so-called exame criminológico (in a literal translation, ‘criminal exam’). We seek to analyze its functions and assess whether the performance of such exam is in accordance with the law. Principally, the exam must be performed on all prisoners sentenced to be held in closed conditions (regime fechado), immediately after they enter prison. There has been a legal provision that enabled the performance of the exam in order to assist tribunals to render fair decisions regarding the fulfillment of the “subjective requirement” imposed on prisoners and necessary for progression of conditions (e.g. moving from closed conditions to semi-open conditions). However, Law nº 10.792/2003 dismissed performance of the exam for application of the subjective requirement. In view of this scenario, we carried out extensive doctrinal research regarding the concept and purpose of the exam, aiming to understand how the institute is seen by jurists. Additionally, we investigated how the exam is currently understood and enforced by the jurisprudence of the Brazilian Superior Court of Justice (STJ) and the Brazilian Court of Justice of São Paulo (TJSP). Ultimately, we intend to evaluate whether the performance of the exam is in accordance with the criminal law or the originally idealized function of such exam is in fact disregarded in practice