A constitucionalidade do pacote anticrime sob a ótica da teoria do direito penal e dos direitos e garantias constitucionais penais

Abstract

The present article aims to analyze the constitutionality of the Anti-crime Package, considering the materiality of its norms, in theory, correspond with the ideas presented in the Teory of the Enemy's Criminal Law. In summary, the Anti-crime Package – Law nº 13.964/19 – refers to a set of changes in the Brazilian legislation, which aims to increase, with the severity of criminal sanctions, the effectiveness in combating organized crime, violent crime and the corruption. These changes have occurred within the scope of the penal code and penal procedure, in addition to other laws, as is the case with the Penal Execution Law, the heinous Crimes Law, among others, analyzed in detail in the course of this study. Because of this greater severity, conferred upon the penal legislation to certain kinds of offenders, the idealization of this new legislation is especially similar to the arguments raised by the German theorist Günther Jakobs, in the development of his Theory of the Enemy’s Criminal Law, since this theory is based on theoretical pillars with, anticipation of punishment; disproportionality in the application of criminal sanctions in face of crimes committed; and flexibilization of fundamental rights and guarantees, in order to make more severe the treatment with the individuals considered enemies of the State. Therefore, to verify and discuss the pertinence and the legality of Theory of the Enemy’s Criminal Law adopted by the Brazilian legal system, regarding the Anti-Crime Package, it was used as a theoretical method the bibliographic and documentary research, based on the review of the existing academic literature on the theme of study. As a result of this analysis, it was possible to identify that the Anti-Crime Package, when adopting implicitly the Teory of the Enemy's Criminal Law, under the perspective of the majority doctrine, it’s unconstitutional, since that the relaxation of fundamental rights and guarantees achieved over the years, do not agree with a Democratic Rule of Law. However, the minority doctrine recognizes that country's criminal law has been, strongly influenced by this theory, and it is necessary that individuals who transgress the law, in order to be considered enemy, be treated differently and, consequently, more rigid than those not included in this list, arguing that the relaxation of fundamental rights and guarantees it is legitimate and, therefore, constitutional, considering that in this process, the essential limits inherent to these are preserved.