The principle of legal reserve and the crime of torture in Brazilian legislation

Authors

  • Sylvia Helena Steiner Malheiros

Keywords:

Legal reserve, Crime of torture, Criminal definition, Federal Constitution, Fundamental rights

Abstract

The text analyzes the discussion raised in the judgment of Habeas Corpus 70.389-5 by the Federal Supreme Court regarding the definition of the crime of torture in Brazilian legislation. It examines the historical evolution of the prohibition of cruel punishments, the incorporation into domestic law of the UN and OAS Conventions on torture and the provisions of Article 233 of the Statute of the Child and Adolescent, confronting the principle of legal reserve, provided in Article 5, XXXIX, of the Federal Constitution, with the guarantee of protection against torture. It argues that the legislator's inertia and the integration of indeterminate concepts, in the light of common sense or conventional texts, offend the material content of legality, concluding that there is no criminal type capable of grounding prosecution.

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References

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Published

1996-01-01

How to Cite

MALHEIROS, Sylvia Helena Steiner. The principle of legal reserve and the crime of torture in Brazilian legislation. Brazilian Journal of Criminal Science, São Paulo, v. 13, n. 13, p. 163–171, 1996. Disponível em: https://publicacoes.ibccrim.org.br/index.php/RBCCRIM/article/view/3461. Acesso em: 20 oct. 2026.
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