DEFENSIVE DEMOCRACY AND OVERCRIMINALIZATION: THE CRIMINAL ORGANIZATIONS LAW AND THE EFFECTS OF ADI-5567 ON PUBLIC POSITIONS AND FUNCTIONS

Abstract

Contextualization: The phenomenon of corruption nowadays has expanded to multiple physical and virtual borders, reaching public and private relations that develop within the scope of Society, State and Market, particularly with regard to economic and organized crime, generating real scenarios of overcriminalization (criminal offenses marked by extremely high levels of complexity and sophistication, as well as generating tragic impacts of an individual, collective and diffuse nature, inclusive of Democracy). Because of this, legislation and policies to defend the Democratic Rule of Law have been developed, with an increase also in terms of penalties for subjects who provoke those crimes, especially for public agents, given the institutional and political nature of the positions and functions that they occupy.

Objectives: The general objective of this work is to evaluate, based on approaches to the concepts of overcriminalization and defensive democracy, to what extent the determination of art.2º, §6, of Law nº12,850/2013, which deals with the loss of office and removal from public duties for eight years of any public agent involved with criminal organizations, and the decision of the Federal Supreme Court, in ADI-5567, are consistent with the Brazilian regulatory system as a whole.

Methodology: We use the deductive method in our work, and as a research technique, we use the evaluation of indirect documentation, namely bibliography.

Results: As results, we intend to propose a broader perspective as the basis for the STF's decision, in order to take into account the political and legal nature of public positions and functions in the Democratic Rule of Law.