Direito fundamental à segurança e o princípio da proibição da proteção deficiente: possíveis imbricações no processo penal brasileiro

Abstract

In Brazil, there has been a significant increase of the criminal rates during the last thirty years. Unlike some other countries, the sense of insecurity here has concrete and objective basis. Besides that, the criminal prosecution is slow, bureaucratic and inefficient, resulting in large numbers of impunity. The right to public security has not been properly implemented, although it can be classified as a "fundamental right". This predicate attracts the potentialities of the so called objective dimension and consequently the theory of the state’s duties to protect. Thereby, any state omission or action below expected means a normative deficit. It is the so called untermassverbot principle, a doctrine that, connected with proportionality, emphasizes the state's duties to implement, in the executive, legislative and / or judicial branches, the bases for the achievement and protection of the fundamental rights. In the criminal area, this principle is related to the debates about the “garantism” theory, by the Italian Luigi Ferrajoli. It is explained the tradicional penal garantism, the general theory of the garantism and also the movement (and its criticism), which take places in Brazil, that strives for the integral reading of the garantismo doctrine. Ferrajoli's work is nowadays closer to constitutional law, aware of needing of protection not just individual, but also social and collective rights. Under the influence of the untermassverbot principle and the integral comprehension of guarantism, this paper proposes legislative or judicial changes in the Brazilian criminal law procedure.