Direito Penal do Inimigo sob a Luz dos Direitos Humanos e das Garantias Fundamentais

Abstract

The theory of "Enemy Criminal Law" has generated intense debates in penal and constitutional theory, especially for proposing a distinct regime for certain individuals considered "enemies of the State." In this sense, the present article critically analyzes the previously mentioned theory, developed by the German jurist Günther Jakobs at the end of the 20th century, under the light of human rights and the fundamental guaranties of the Democratic Rule of Law. Consequently, the central objective of the research is to demonstrate that Jakobs' proposal has weaknesses, as by distinguishing citizens from enemies, it allows for the relativization of constitutional and procedural rights, legitimizing an exceptional penal regime in the name of public safety. Additionally, despite the notoriety of the theory, its formal and substantial incompleteness is noted, especially due to the absence of objective elements for defining an individual as an "enemy of the State," which can lead to arbitrary interpretations by the state apparatus and open space for political, social, and gender persecutions—just like the Nazi regime. As a result, it is concluded that the adoption of Enemy Criminal Law represents a grave threat to the foundations of human rights, by allowing the flexibilization of essential guarantees under the argument of protecting social order. Finally, the present research employed deductive, descriptive, and qualitative methodology, using bibliographic-documentary and doctrinal procedural instruments.