Lei de Organização Criminosa (n. 12.850/2013): análise dos crimes de organização criminosa (artigo 2º, caput) e de impedimento ou embaraço da investigação de infração penal (artigo 2º, §1º), à luz do garantismo penal

Abstract

This thesis aims to employ Italian philosopher of law Luigi Ferrajoli’s theory of penal guarantees in the understanding of the basic criminal types in Law No. 12,850/2013, criminal organization and impediment or disturbance of the investigation of criminal offense crimes, provided, respectively, in art. 2, head of the Article, and art. 2, §1. In this sense, the reflections on the theory of criminal guarantees are herein based mainly on the book Diritto e ragione: teoria del garantismo penale, authored by Ferrajoli. The choice of this theoretical framework of liberal-Enlightenment roots is justified by its harmony with principles of penal guarantees found in the Magna Carta of 1988 – especially concerning the principle of legality, the maximum expression of a democratic State based on the rule of law – and makes it possible to analyze the criminal types from the perspective of the defense of fundamental rights and guarantees and the limitation of state punitive power. For this purpose, we take a critical stance in the face of the conceptions that point to Law No. 12,850/2013 as a piece of legislation against penal guarantees, above all, relating it to the Criminal Law of the Enemy concept. From this perspective, the axioms of material criminal law elaborated by Luigi Ferrajoli, as horizons of humanization and defense of the democratic penal system, support the standpoints on the criminal types that constitute our object of study, in observance of criminal conventionalism. Considering that the material conditions of human life always reflect on the production of law, we briefly walk through the evolutionary panorama of the liberal state to the current neoliberal state, in order to connect this process to globalization and criminal expansionism, a phenomenon that has reverberated in the strengthening of authoritarian criminal models that, in the field of elaboration of contemporary criminal law, manifest themselves through the creation of criminal types with symbolic and punitive functions, opposing the theories of penal efficiency and penal guarantees. In addition to that, we deal with several semantic, conceptual and historical aspects that permeate legal discussions concerning legislation on organized crime in Brazil