Reflexos do Direito Penal do Inimigo na Lei nº 13.260/2016: Uma ameaça ao Estado Democrático de Direito

Abstract

This monograph was elaborated and developed with the objective of carrying out a critical analysis of the rule contained in Law 13,260 of March 16, 2016, especially with regard to the spiritualization of legal rights protected by the diploma and, with the same relevance, to the explicit criminalization of preparatory acts of the crime of terrorism. It is also intended to demonstrate that legislative innovation, promoted on the eve of the Olympiads based in Brazil, is closely related to the premises that guide the dogmatics of Enemy Criminal Law, developed by the german doctrine of the University of Bonn, Günther Jakobs. To do so, the study will be guided by a deductive perspective. First of all, some historical aspects about the origin and development of terrorism will be observed and organized and, based on a timeless judgment, its essential characteristics will be listed in order to formulate, at the end, a universal concept of the phenomenon. Next, the work will be based on the comparison between the current legal treatment of terrorism by the Brazilian legislator, with the pillars of the Criminal Law of the Enemy and with the guiding principles that govern the criminal policy of the Democratic State of Law, making brief considerations about experience in comparative law. As far as the research technique is concerned, the bibliographical and documentary research will be used with greater in this monograph, through the interpretation of normative texts, besides articles, doctrines, books and legal magazines that contemplate the subject of terrorism, all with the objective to corroborate the premises on the issues that will be addressed here. The result sought by this monograph is to highlight the illegality and inefficiency of the commissions provided for in the Anti-Terrorism Law, especially in regard to the excessive abstractivization of the juridical assets elected as guardianship object and, likewise, in the criminalization of merely preparatory acts. In this way, we want to come up with alternatives to the fight against terrorism crimes, proposing mechanisms of protection that find support in the guarantors that should guide the national legal system. Regarding its structure, this study is organized in order to outline the historical evolution of terrorism, showing its main characteristics, as well as outlining the legal-penal treatment of the subject in the field of comparative law. Next, we turn to the specific analysis of Law No. 13.260 / 2016, commenting on the concept of terrorism embraced by the Brazilian legislature, on the nature and scope of legal status and, finally, on the scope of the acts criminalized by the diploma . After this stage, the legislation will be opposed to the dogmatics of the Criminal Law of the Enemy, and it is necessary to go through a brief historical retrospective about the emergence and consolidation of this theory, the analysis of the philosophical foundations that guide the conception of Jakobs, the theoretical foundations and characteristics that distinguish the model of Criminal Law analyzed here will be explained, distinguishing the conceptions of person and non-person for the German doctrinaire, as well as the coercive treatment protected to each of these contexts. Finally, the impact of the Brazilian legislature's attempt to include some precepts of the Enemy's Criminal Law in the Brazilian legal system, through the promulgation of the Antiterrorism Law, will be analyzed, demonstrating that the hardening criminal intended may be counterproductive when it comes to the phenomena terrorism, and also demonstrating the ineffectiveness of combative legislation and the risks it poses to social freedoms.