Direito penal do inimigo e facções criminosas: análise constitucional e reflexos no Estado Democrático de Direito

Abstract

The research aims to investigate the intervention of the Enemy Criminal Law (ECL) in combating criminal factions within a Democratic State of Law. It focuses on analyzing the premises and postulates underpinning the ECL, examining its characteristics and manifestations in Brazilian legislation, and delving into the concept of the enemy explored in Günther Jakobs' work. Additionally, it seeks to assess how the influence of criminal factions hinders the exercise of individual rights and guarantees due to their presence in certain environments. The study also evaluates the legitimacy and effectiveness of adopting an enemy policy in countering organized crime. This research is descriptive (in objective), bibliographic (in procedure), and qualitative (in approach). Throughout, it becomes evident that criminal factions emerge as the supposed enemy raised in Jakobs' theory, posing a real threat to the legal order and contemporary social order. Furthermore, it is noted that Brazil's criminal policy against organized crime predominantly relies on punitive measures without addressing the crime's root cause. The final chapter suggests that adopting a policy focused on crime prevention, especially through intelligence activities, is more effective in combating criminal organizations and can balance the fundamental right to security without necessarily violating individual fundamental guarantees.