Garantismo penal : uma abordagem constitucional de suas formas negativa e positiva à luz do duplo viés do princípio da proporcionalidade.

Abstract

The present work consists of a brief study of the evolution of the forms of Liberal and Social State which preceded the current Democratic State of Law, as well as of its relevant reflexes in the penal and procedural criminal law. Along these lines, with the advent of the Democratic State, it will be addressed the importance of the promulgation of the Federal Constitution of 1988, which should effectively serve as fundamental commandment. Subsequently, constitutional principles, implicit and explicit, expressive for criminal and procedural criminal law will be addressed, the content of which must be disseminated to all legal systems, especially during the application of a sanction. Next, will be addressed the concept of criminal garantism based on the jurist's theory Luigi Ferrajoli and its three definitions will be pointed out, together with the presentation of the guarantor system elaborated by the same. Also will be addressed the distortions of Ferrajoli's studies that culminated in the practice of "hyperbolic-monocular" garantism, directed only at the observation of individual fundamental rights, acting as limiting the state's performance, will be discussed, while the need to apply the garantism reasoned by the principle of proportionality. Finally, this principle will be discussed, especially with regard to the need to find the right balance between the prohibition of excesses and the prohibition of deficient protection, so that individual, social and transindividual fundamental rights are respected.