Sérgio Moro’s anticrime package and the Enemy’s Criminal Law
The so-called ‘anticrime package’ authored by former federal judge Sergio Moro will soon enter the agenda of the national congress to regulate the legislative process, where parliamentarians will discuss the proposals and analyze the needs and constitutionality of the measures.
Jurists, specialized websites, politicians and even former high court ministers have spoken on the matter.
After public knowledge of the proposals of the Minister of Justice and Public Security, a group of lawyers – the Arns Commission – came together to monitor Sérgio Moro’s proposals, which were considered to be threats of setbacks, if approved, due to achievements in the areas of human rights ensured by the 1988 Constitution.
However, even though the theme is political, the problem we propose in this article is to analyze the theoretical and ideological bases of the anticrime package of the former federal judge, Sergio Moro.
Criminal law is indispensable for the protection of essential legal rights, legitimately and effectively protecting the fundamental rights of the individual and of society.
In this perspective, from the point of view of one of the anti-Guarantor theories of criminal law and contrary to the Democratic State of Rights, we see some similarities of the anti-crime package proposals with the criminal law of the enemy.
The theory formulated by Günter Jakobs, a German criminalist, is basically based on three ideological pillars: anticipation of punishment, disproportionality of penalties and relativization and / or suppression of certain procedural guarantees and creation of severe laws directed at those who want to achieve.
But who is the Enemy?
According to Jakobs, “anyone who is not sure that he will behave as a person can not expect to be treated as a person, nor can the State be allowed to treat him as a person, otherwise he would be damaging the right of others to (JAKOBS, Günther, Criminal Law of the Enemy, Organization and Introduction, Eugênio Pacelli de Oliveira, Lumen Juris, 2008. p.17).
In this perspective, the measure of Minister Sergio Moro to ensure the provisional execution of the criminal conviction after trial in the second instance is anticipatory of the penalty, in a way that directly injures the principle of presumption of innocence, and suppress a constitutional guarantee.
Although there is a recent decision of the STF on the subject, we recall that jurisprudence is subject to change without any influence of the legislative or executive power. If the measure is approved according to the legal procedure, it will be more difficult to change, since it involves Proposal of Constitutional Amendment.
Likewise, the proposal to change the legitimate defense – excluding illicitness – for the benefit of the public security agents, relativizes the punishment and also can be disproportionate in the penalties – when not exempt – to the public security agents, given the enormous subjective load conferred on the judges. Some lawyers have called the measure “license to kill.”
Nevertheless, the measure of the former federal judge to tighten the sentence punishes the Principle of individuality of punishment, noting flagrant disproportionality, suppression of legal and constitutional guarantees, and reaching certain criminals labeled as ‘enemies of society’.
The Criminal Law of the Enemy is inadmissible in a legal system inspired by the guiding principles of a Social State of Rights.
With the approval of the anticrime package, the principle of Dignity of the Human Person would be relaxed and several constitutional guarantees thrown into the open.
In the Criminal Law of the Enemy of Günter Jakobs there is no respect for constitutional principles, such as due process, legality, presumption of innocence, minimal intervention, subjective criminal liability, guilt, among others.
We do not need more remnants and influences of the Enemy’s criminal law in the Brazilian legal system.
Populist and political measures are far from actually strengthening a fair, egalitarian society with low crime rates.
The proposals of the Minister of Justice and Public Security are unconnected with the reality of the penitentiary system and the Democratic State of Rights, showing that it is not feasible to combat crime solely by its effects.