Análise da influência da teoria do Direito Penal do inimigo na legislação criminal brasileira: uma investigação por amostragem.

Abstract

In accordance with the Federal Constitution of 1988, Brazil is in a democratic state. All citizens are assured, without distinction, the observance of fundamental rights and guarantees, as they enshrine the importance of the human being against the state power. The restriction imposed on state and individual protection for such rights and guarantees, encompass many aspects, including criminal matters. The Brazilian Legislature, on occasion, entered the national laws foresee criminal law special disciplinary procedure or treatment tougher punitive measures aimed at certain types of criminals. The time required sociological, because society, shaped by the media, the legislator pleaded measures (in criminal matters) to the height of the crimes committed. Accordingly, he edited himself, among others, the selected sample, which are part of the law heinous crimes, the law of criminal organizations and the Law of criminal executions, specifically the institution of the Differentiated Disciplinary Regime of the body. In Germany, since the eighties, the theory of the Enemy's Criminal Law, proposed by Gunther Jakobs, have enabled the differential treatment of highly dangerous criminals, which are the subjects repeated the authors of criminal conduct and which represent serious danger both to the State and to society. According to the theory, the enemies leave the status of citizens when they do certain behaviors. Deserve because, among other measures, the elimination or restriction of fundamental rights and guarantees, since people are no longer considered. The research aims at analyzing the legal texts of the sample set, in the light of fundamental rights and guarantees inscribe in the Constitution of 1988, later identified, then the potential influence of the ideology of the Criminal Law of the Enemy. Specific objectives are: to recognize the principles and characteristics that guide the democratic rule of law, especially the fundamental rights and guarantees, to identify the ideology that guides the criminal law of the enemy, giving prominence to the concept, and features some of the peculiar aspects, examine the selected sample, and the sociological, legal and ideological. It is used for both, the following methods: as a method of the inductive approach, the research will be used for sampling, since they observe specific criminal laws in order to obtain a general conclusion. As a procedural method, will use the exegetical and legal, because of the interpretative analysis of the legal provisions, aided by the dialectical opposition employed to analyze the doctrine and jurisprudence on the subject, all having as a research technique primarily research literature as indirect documentation, applied in doctrinal texts, scientific, legal and jurisprudential. The conclusion arrived at by the theoretical development grounded in specialized references on the issue, is that although there is no formal adoption of the theory of the Criminal Law of the Enemy by national law, there is a clear ideological influence of the same in the selected sample.