An analysis of the exclusion of illegality of the state of necessity in times of covid-19 in the face of art. 268 of the penal code

Abstract

This article aims to analyze the possibility of focusing on the exclusion of illegality from the state of need to the crime typified in art. 268 of the Penal Code, which punishes those who fail to comply with the determination of the public power to prevent the introduction or spread of a contagious disease, when practiced by informal workers, for their necessary and indispensable subsistence and that of their family. Currently, the world is facing a pandemic due to the global incidence of the Covid-19 virus, resulting in imperative adjustments regarding legal institutions to adapt to the new factual reality, in the sanitary, as well as economic aspect, faced. Faced with such a scenario that plagues the country, it was necessary to take measures by the authorities of the executive branch, namely, measures of social isolation, which, consequently, prevented the exercise of most of the work activities, except those considered essential. In this context, let us treat at present, the informal worker who, does not conform to the rules for receiving government assistance, or who is experiencing difficulties in receiving it, or entered a state of poverty before the benefit was made available by the State, or even if he receives the amount, which is very small to bear the bills, considering the amount of expenses and people residing in the house, which, in order to maintain his livelihood and that of his family, due to the lack of alternatives, failed to comply with the determination, formally focusing on the type of article 268 of the CP. It is concluded at the end that the individual in a particular special case, who is able to constitute evidence capable of evidencing his state of need for penury, with all the elements of justification present, makes it perfectly possible to exclude illegality in art. 268, of the violation of the determination of the public power, behold, another superior legally protected asset that is life, is in current danger.