Criminal protection of public health: implicit constitutional mandates of criminalization and violation of the principle of proportionality Laís Berti Resqueti

Abstract

Background: This study discusses the obligation to confront the implicit constitutional mandate of criminalization in order to implement the full criminal-legal protection of health in the Brazilian territory, contextualizes the form of protection from the individual perspective that the legal asset has most often been treated by the Brazilian legislative scenario, addresses the need for criminal protection of health as a supra-individual legal asset and problematizes the difficulties in the criminal treatment of health with the objective of identifying the possible ways to confront this criminality by the criminal norm. It also presents the difficulties of effective protection of the legal asset that requires legislative action by the Brazilian Parliament in the creation of defense mechanisms in the individual and collective spheres in view of the growth of new forms of crime, which requires new approaches from criminal law based on the phenomenon of globalization. Methods: Thus, through the hypothetical-deductive method. Objectives: The research addresses the need for effective protection of health as an asset of individual and collective interest, with possible protection solutions through a parallel to the mechanisms of action to confront and combat terrorism, when dealing with faceless crime. Results: The results of the research are conclusive in verifying that most of the doctrine understands that repressive criminal law is not sufficient to combat crimes that cause harm or risk of harm to diffuse legal interests, and the way of confronting this crime cannot be combated as if it were a solely individual legal interest, the extent of which damages may be irreversible to humanity. Conclusion: That legislative inertia constitutes a violation of implicit constitutional orders and deserves to be addressed under a new approach of systemic and prospective criminal action, with the possibility of relativizing some individual rights of the offender in order to obtain success in protecting the most relevant legal-criminal interest.