Elementos Subjetivos do Tipo Penal: Análise da Imputação do Dolo Eventual à Luz do Caso da Boate Kiss

Abstract

Introduction: The tragedy that occurred at the Kiss Nightclub in 2013 resulted in the deaths of 242 people and generated an intense legal debate regarding the criminal responsibility of those involved. In this context, the present research aims to analyze the subjective elements present in the case, with special attention to the distinction between eventual intent and conscious negligence. Objective: This research seeks to define the distinction between eventual intent and conscious negligence, as well as to analyze the attribution of liability in the aforementioned case. The complexity of differentiating between these two hypotheses, often confused in forensic practice, justifies the importance of the study. Methodology: The study consists of qualitative, bibliographical, and documentary research, in which official documents were analyzed for the qualification of facts, such as the police inquiry, the Public Prosecutor’s Office complaint, and the judicial decisions of the main case. Furthermore, concerning the subjective elements, the study was based on the analysis of criminal law doctrines. Results: According to the Penal Code, a crime is intentional (doloso) when the agent desires the result or assumes the risk of producing it, while it is negligent (culposo) when it occurs due to recklessness, negligence, or lack of skill. Legal doctrine defines eventual intent as the situation in which the agent does not desire the result but assumes the risk of causing it, whereas in conscious negligence, the perpetrator foresees the result but believes it can be avoided. Conclusion: Eventual intent was attributed to the defendants in the Kiss case because, given the deliberate irregularities in the nightclub, it is unlikely that they believed in the possibility of avoiding the harmful outcome.