(IN)APLICAÇÃO DO DIREITO PENAL DO INIMIGO NO ORDENAMENTO JURÍDICO BRASILEIRO SOB A ÓTICA DOS PRINCÍPIOS DA DIGNIDADE DA PESSOA HUMANA E DA PRESUNÇÃO DE INOCÊNCIA

Abstract

This study aims to analyze the applicability of the Enemy Criminal Law Theory within the Brazilian legal system, focusing on the principles of human dignity and the presumption of innocence. The main objective is to examine how elements of this theory affect the foundational principles of the Brazilian legal order, particularly regarding the presumption of innocence and the protection of human dignity. Employing an exploratory research method and a qualitative approach, this work is based on a bibliographic review. The central research question investigates whether the Enemy Criminal Law can be applied in Brazilian criminal procedure, considering that the aforementioned principles are essential pillars of the Democratic Rule of Law. The study draws upon constitutional norms and specialized legal doctrine to address this issue. Conceptual aspects of Günther Jakobs’ theory are discussed, as well as its potential implementation and the resulting tensions with constitutional guarantees. The research concludes that, although the theory is incompatible with the Brazilian Constitution, traces of its logic are evident in specific legislation that enforces harsher penal regimes for serious crimes, thereby undermining, to some extent, the principles of human dignity and the presumption of innocence.