Direito penal do inimigo: análise dos artigos 288 do código penal e 1º, §1º da lei 12.850/2013 frente a um Estado garantista

Abstract

Research to be presented developed through bibliographical investigation. The search has the scope to analyze and conclude if criminal types presented in Article 288 of Decree-Law n°. 2.848/1940 Criminal Code and in Article 1, paragraph 1 of Law 12.850/2013 are ways of incorporating in the domestic legislation the doctrine current called Criminal Law of the Enemy, which, of course, is contrary to our guarantee system. It starts from the study of Gunther Jakobs theory and its main criticisms. Opposed to this concept exposes the garantism model, analysed in this discussion too. Also there is comparisons of the above mentioned associative's crimes, focusing on their similarities and differences. The conclusion from this is that the legislator put the Criminal Law of the Enemy in the Brazilian penal system through the association's crimes as well as criminal organization. This fact is the ruin of the State of Rights, to the extent that this is synonymous with garantism, in terms of prosecution.