Reflexos da teoria do direito penal do inimigo nas leis dos crimes hediondos e antidrogas.

Abstract

The objective of the research is to make an analysis of the theory of criminal law of the enemy, as seen by its creator enabler of the existence of a pure garantista criminal law by the coexistence of the conceptual pair Criminal Law-Criminal Law of the enemy. Contextualizing it in historical, national and world time, it was realized that the new forms of crime, and some historical facts and criminals of great breadth, especially the terrorist attacks of September 11, 2001, led to widespread dissemination of the concept. Based on contractarian philosophy of Rousseau, Flitche, Hobbes and Kant, the theory sees the exclusion of the quality of "person" to offenders who repeatedly and persistently deny the legal, basis for applying the exceptional criminal law. With the exposure of the theories that seek to justify the penalty, it was found that Günther Jakobs believed to be generally positive prevensão (reaffirming the criminal standard) order that the penalty should be for the Criminal Law, being the negative special prevention (inocuização and neutralization the dangerous individual) the function of the sentence in the criminal law of the enemy. Analysis of the characteristic features of the concept: anticipation of punishment; disproportionality of penalties, including with respect to this anticipation, and relativization or suppression of rights and due process, we identified the selected laws (Act of Heinous Crimes and Anti-Drug Law) the presence of the defining features of the criminal law of the enemy. However, the changes operated in these statutes have tended to garantismo since-revoked devices which more reflected the concept of criminal law of the enemy.