O devido processo legal e o direito penal do inimigo: uma análise crítica no contexto do caso Débora dos Santos

Abstract

This undergraduate thesis aims to analyze the historical evolution and contemporary application of the principle of due process of law, as well as its relationship with the theory of the Criminal Law of the Enemy, in the context of the Democratic State governed by the rule of law. The research begins with a historical and conceptual approach, tracing the origins of due process in the Magna Carta of 1215 and its consolidation in modern constitutions, especially in the 1988 Brazilian Federal Constitution. It seeks to understand how this principle—essential for the protection of human dignity and the limitation of state punitive power—contradicts the exceptional practices proposed by Günther Jakobs’ Criminal Law of the Enemy. The study examines the impact of this theory on the Brazilian legal system and the risks it poses to the preservation of fundamental guarantees, particularly when applied to social groups labeled as threats to public security. Through bibliographic review and doctrinal analysis based on authors such as José Afonso da Silva, Alexandre de Moraes, Paulo Bonavides, Luigi Ferrajoli, and Jakobs, the research demonstrates that adopting an exceptional penal model undermines the foundations of the Democratic State of Law and weakens the legitimacy of the justice system. It concludes that the effectiveness of due process of law is an indispensable condition to ensure equality, rationality, and the humanization of Criminal Law, preventing the State from using social fear as a justification for restricting rights.