Terrorismo, lei do abate e direito à segurança na sociedade de risco

Abstract

In contemporary society — however named and described as “risk society” or “reflective society” (ULRICH BECK), or as “hypermodern” society (GILLES LIPOVETSKY), “postmodern”, “liquid” (ZYGMUNT BAUMAN) — the value “safety” is of extraordinary importance, whether as opposed to the increasing global threats and risks posed by man as a result of technological advancement (nuclear weapons, global warming, genetic engineering, biological warfare, terrorism, artificial intelligence, etc.), either as an antidote to the constant and profound social, economic and political mutations, whether as a solace against the lack of strong values and the overthrow of firm paradigms by others more fluids. However, in the quest for security, several Democratic States have adopted clearly disproportionate measures or, at least, of dubious constitutionality, for example, the Brazilian law of hostile aircraft shoot down. After a brief analysis of the historical evolution of the right to security and its current discipline in some Constitutions and international treaties, it is sustained the utility of the principles of proportionality and reasonableness to solve several empirical conflicts involving the right to security, particularly with regard to terrorism. The conclusion is that the Democratic Rule-of-Law State cannot betray its essence, its founding values, to combat what contravenes these same values, lest to match up to his enemies. The concept of “threat to national security” must not be manipulated in order to justify true violations of fundamental rights. Severe restrictions on fundamental rights are justified only on effective and real state of siege or defense. Trivialization of the invocation of “state of siege” in an alleged and permanent “war on terror” undermines and threatens democracy and the rule of law, particularly because of the permanent nature of this alleged war, incompatible with the very nature of the state of siege, transient by definition