A discussão sobre o direito de matar do Estado: uma análise sobre a inconstitucionalidade da autorização para um agente público abater o portador ilegal de arma de fogo sob a luz do instituto da legítima defesa e direito brasileiro

Abstract

This monograph is the result of a bibliographic research, whose sources were doctrine, brazilian legislation and jurisprudence. As its main objective, it seeked to analyze the constitutionality of the authorization of the summary killing of the alleged illegal holder of a restricted use firearm, issued by the Governor of the State of Rio de Janeiro, under the interpretation that such attitude is in line with the requirement of imminent aggression of art. 25 of the Penal Code, which provides for self-defense. To this end, the first chapter was given a brief theoretical study of the theory of crime and its tripartition between typical fact, illegality and culpability. In the second chapter, the concept of self-defense, as well as its requirements and some jurisprudential understandings about one of its requirements, namely imminent aggression, were deeply studied. And the third chapter sought to analyze, based on the previous chapters, whether the abovementioned authorization for execution found support in the legal system. It was concluded, therefore, by the unconstitutionality of the act, since several constitutional provisions were injured: the principles of the natural judge, the separation of powers, the legality, the legal process, besides that such authorization brings clear signs of the current of Enemy Criminal Law, whose ideals are in complete dissonance of the homeland legislation.