O princípio da proporcionalidade: o dificil equilibrio entre a defesa da ordem pública e o direito à manifestação

Abstract

The principle of proportionality in the scope of Criminal Law has caused an intense legal, academic and social debate among jurisconsults around the world. This principle calls for the consideration of fundamental rights and other conflicting values, however, there is a need to identify agreement, identifying which rights prevail in a given context. Under Article 80 of the CRM, citizens have the right not to comply with illegal orders or orders that offend their rights, freedoms and guarantees. In this sense, resistance can be passive, defensive or aggressive, with one of the forms of resistance taking the form of demonstration. Normally, the demonstration begins with an organizer, who presents the manifesto and invites third parties to join for freedom of membership, who gather one by one, with the aim of expressing an idea. In its true sense, the Right to demonstrate reveals itself in the possibility of citizens uniting in favor of a common objective, that is, the defense of their interests commonly in public spaces, being able to present signs, emblems and other characteristics that in a certain way way convey a message to the recipient who normally has the power/duty to change the situation that gave rise to the protest. It is important to understand that freedom of demonstration should not be confused with acts of vandalism that have normally occurred, for example, blocking public roads, looting, aggression, throwing potentially offensive objects at third parties. Thus, the principle of proportionality arises to guide the State's actions and avoid unjustified excesses. In effect, the PRM's intervention cannot be arbitrary or abusive, at the risk of limiting the exercise of fundamental rights without legal support and subjecting it to the application of appropriate penalties in cases where the law is infringed. Nothing prevents the exercise of freedom of demonstration from being disciplined and guided in such a way that its exercise is legal so that it does not pose a threat to the State and allows the PRM to follow or monitor the demonstrations without interfering in the cause of the participants. On the other hand, the content of the demonstration cannot (except for considerable reasons) the administrative authority attribute value judgments contrary to the spirit of the demonstrations – this would be censorship, prohibited in the CRM.