Crime de Infração de Medida Sanitária Preventiva: uma releitura ante a pandemia COVID-19

Abstract

The crime of violating preventive health measures, provided for in Article 268 of the Penal Code, which aims to criminally protect public health, was widely used during the COVID-19 Pandemic, due to cases of non-compliance with preventive health measures resulting from laws, decrees, ordinances and other complementary regulations issued by public administration bodies at all levels of executive power and by state and municipal legislative powers. Article 268 of the Penal Code (which was little applied and superficially studied) began to be complemented by norms emanating from the most diverse sources, bringing to the fore the discussion regarding the constitutionality of legislative delegation in criminal matters to different legislative powers of the Union, as well as well as public administration. The large number of complementary norms published, the rapid succession of these norms over time, as well as the diversity of actions and omissions whose non-compliance was considered appropriate to the criminal type, aroused interest in the study of crimes aimed at protecting the collective legal good public safety , specifically those related to public health. To this end, this research analyzes the purposes of Criminal Law in a democratic state of law, the importance of the principle of taxation in defining typical criminal conduct, and the institution of blank criminal law. Since Article 268 of the CP is a heterogeneous blank criminal law, it was considered important to study this legislative technique, questioning its adequacy to the Brazilian legal system, as well as verifying the compatibility between the principle of legality, in terms of taxation, and the delegation of the definition of essential elements for the individualization of typical criminal conduct to complementary norms published by entities other than the federal legislative power, seeking to define the elements indispensable to the constitutionality of the heterogeneous blank criminal law, in order to ultimately verify whether Art. 268 of the Code Penalty meets these requirements.