Lavagem de capitais: a criminalidade econômica diante da expansão do Direito Penal e a preservação dos direitos fundamentais frente ao direito penal do inimigo

Abstract

The crime of money laundering was introduced into the Brazilian legal system by Law 9,613/98 in compliance with the agreement of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, carried out in 1988. After several legislative reforms and changes in criminal policies local and global measures to combat bleaching, Law 12683/2012 was enacted in Brazil, which substantially changed the legal system against laundering, seeking to adapt the country to modern international policies. This research proposes a hermeneutic analysis of the crime of money laundering, from its concept, characteristics and justifications, through the legal asset to be protected according to Claus Roxin's theory, establishing parameters about its constitutionality and bringing the necessary discussion about the advancement of economic criminality and economic analysis of crime in order to confront it within the scope of the Constitutional Criminal Process, the democratization of the process and the implementation of fundamental rights and guarantees. In addition, within the perspective of evident expansion of criminal law, expressed through the creation of new penal types, increase and stiffening of sentences, in addition to the advance of provisional procedural arrests, verify whether it is a reflection of the so-called criminal law of the enemy led by the theory of authored by the German Gunther Jakobs, in which there is a clear distinction between citizens and enemies in society, thus attributing a functional theory of punishment, which starts to have not only a retributive and preventive purpose, but especially of combating the enemies of the State, that allows the flexibilization and withdrawal of fundamental rights and constitutional procedural guarantees. For such an analysis, it will look into which aspects the culture of fear, social and media pressure come to exert influence on state criminal policy, in particular for the confrontation of crimes committed by criminal organizations, reaching the conclusion that the typification of the laundering of capital has a direct connection with this jakobsian theory and demonstrates true non-observance and affront to basic rights such as due process of law, the presumption of innocence, non-blame, procedural celerity, broad defense and the dignity of the human person as a universal comparison of the compliance with the constitutional instrumentality of the criminal process.