O conflito entre o princípio da liberdade de consciência, de crença e de cultos religiosos e o princípio da segurança pública no direito brasileiro

Abstract

Brazilian Federal Constitution brings, in its many clauses, certain rules containing an eminent principle nature, which appears as roots or basis on which must be founded the national Legal system. Irreparably, situations will arises in the social environment, in which standards-principles of constitutional level will meet in contradiction, before which the jurist must identify, under the unique perspectives of the cases, the one to be imposed, through a axiological process, without removing from the Legal system the other rule, and giving it the least sacrifice. In this context, this work will delimit the basis on which will rises the conflict between the fundamental right of religious freedom and the right of public safety, both established in the Federal Constitution. This legal clash will be studied from the perspective of some religious groups which uses, in their ritualistic practices, illegal psychoactive substances, entailing the criminal prosecution against the users. Therefore, the Government, holder of this prosecution, as dictated by de Supreme Law of 1988, would restrain such conducts, in order to ensure the public safety, which is established, in the Constitution, as right of all citizens, in order to guarantee, theoretically, the social peace. However, Criminal Law must be studied before its inherent principles (Insignificance Principle, Social Adequacy Principle, among other). Thus, the Government shouldn’t be able to repress, disproportionately, the religious groups that make use of the substances, since they are simply exercising the fundamental right constitutionally guaranteed to them, as well as their behavior, in these ritualistic experiments, does not affront, materially, the legally protected by the Government.