The protection of human rights and international penal cooperation demand efficient measures in order to combat terrorism, as long as one observes juridical certainty and security. Nevertheless, the absence of a definition of terrorism, in its international and national context, allied with the diversity of conceptions, particularly the ones related to the subjective character of terrorism, in relation to political crime, challenge the rational fundamentals of judicial decision.
The intricacies become relevant when one ascertains that innumerable Latin American and Iberian Constitutions forbid the extradition of a political criminal with the latter generally being granted protection. Therefore, as a result of the Interamerican Convention against terrorism, a terrorist has to be reprimanded. The definition of a crime motivated for political reasons is by nature controversial and inconclusive, and, consequently, conceptual assimilation can occur and the extradition of terrorists can be made difficult. For this reason, it is of the utmost importance to analyze both criminal offenses because they engender conflicting results.
The intricacies become relevant when one ascertains that innumerable Latin American and Iberian Constitutions forbid the extradition of a political criminal with the latter generally being granted protection. Therefore, as a result of the Interamerican Convention against terrorism, a terrorist has to be reprimanded. The definition of a crime motivated for political reasons is by nature controversial and inconclusive, and, consequently, conceptual assimilation can occur and the extradition of terrorists can be made difficult. For this reason, it is of the utmost importance to analyze both criminal offenses because they engender conflicting results.
The fundamentals of this debate take into account Hannah Arendt's works. Her reflections on freedom, consensus, legitimacy, public space, contradiction, banality of evil, amongst others, encapsulate not only conceptions, but theoretical landmarks. These bear relation to each other and complement themselves within a philosophical and political system in that they guarantee explanatory coherence and reasonability to this research. Furthermore, Arendt's thoughts harmonize with the doctrine of post-positivist Law and contribute to a juridical construction, which is legitimate and democratic.
The aim of this thesis is to propose a conceptual structure, which allows judges to differentiate the acts of a political criminal from those perpetrated by a terrorist. Accordingly, this distinction allows the extradition of the latter one so that he/she can be sentenced or receive punishment.
The importance of the theoretical solution is justified due to the mitigating circumstances inherent in the investigation, which is both cognitive and probative. This is related to passive extradition, which does not guarantee either the proof of the motivation of the criminal or the procedural assessment of the historical and political context in which a crime is inserted. The “Zetética”, which has been carried out, requires pragmatic implementation for an analysis of the case of extradition nº 700 of “Supremo Tribunal Federal”.
To sum up, the distinction between terrorism and political crime demands the eradication of the subjective proposals promoted by either doctrine or jurisprudence. The juridical solution is in hermeneutics, which are based upon a linguistic interpretation of the constitutional text and the “constitutionalization” of International Law in light of the Democratic State of Law, allied with the instrumentality of the protection and defense of human rights.
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