DIRETRIZES ACERCA DO DELITO DE REMOÇÃO ILEGAL DE ÓRGÃOS COM RESULTADO MORTE E REFLEXOS NA COMPETÊNCIA JURISDICIONAL: ANÁLISE DO RE 1.313.494/MG

Abstract

The present work focuses on the Extraordinary Appeal nº 1.313.494 of Minas Gerais, whose judgment took place on September 14, 2021, in which the First Panel of the Federal Supreme Court decided on the competence of the criminal singular court to prosecute and judge the crime of illegal removal of organs resulting in death, removing the competence of the Jury Court to judge the specific case. In the present case, the defendant doctors removed the two kidneys of a 10-year-old boy, still alive, to illegally sell them. They were convicted in the 1st degree of jurisdiction for the offense provided for in art. 14, § 4, of Law 9.434/97. However, in the second degree of jurisdiction, on appeal, was decreted the nullity of the sentence that condemned the defendants for the crime of § 4 of art. 14 of Law 9.434/97, combined with art. 29 of the Penal Code for the absolute incompetence of the judgment, in the case of a matter affecting the Jury Court, given the animus necandi (intent to kill) narrated by Parquet and recognized by the magistrate. Therefore, the research problem lies precisely in identifying in which cases the criminal offense provided for in the Transplantation Law should be applied, the judgment being responsible of the single court, as well as in which situations are affected by the Jury Court, recognizing the direct willful misconduct. or eventual for homicide, establishing jurisprudential parameters and interpretative and doctrinal guidelines. Regarding the methodology used, the intended research is of a legal-dogmatic nature, of an exploratory nature, since a theoretical review was carried out on art. 14, § 4, of the Transplantation Law, analyzing from the doctrine and judicial decisions, whether it is a crime qualified by the result, admitting death in the intentional or culpable modality, or if it is a crime qualified by the result in the species pretentious. What can be concluded from the present work is that, despite the doctrinal discussions about the legal interest protected by art. 14, § 4, of Law 9.434/97, the cumulation of two incompatible criminal types in a contest of agents is not admissible. Taking into account that the country's penal system is monistic, there should be a single classification for all co- authors of the criminal event. Finally, although a decision was made by the Federal Supreme Court, the last instance, on the subject of the controversy, the discussion does not end with the judgment of this appeal, given that the matter was not even unanimously decided by the Justices, being ventilated various theses and controversial understandings by jurisprudence and doctrine.