BETWEEN ILLEGALITY AND THE PROTECTION OF LIFE: LEGITIMATE SELF-DEFENSE IN HOMICIDES IN THE CONTEXT OF DRUG TRAFFICKING

Abstract

Self-defense, as provided for in Article 25 of the Penal Code, constitutes a cause for exclusion of unlawfulness when the agent repels an unjust, current or imminent aggression through the moderate use of necessary means, requiring, according to doctrine, objective and subjective requirements, especially the *animus defendendi* (intent to defend). However, its application in homicides related to drug trafficking reveals significant legal and evidentiary complexity, due to the violent dynamics of these contexts, marked by armed confrontations, territorial disputes, and difficulty in factual reconstruction. In this scenario, Brazilian jurisprudence tends to restrict the recognition of the exclusion through the thesis of "acceptance of risk" or "armed duel," according to which individuals involved in organized crime voluntarily assume the risks inherent in the illicit activity, thus negating the characterization of unjust aggression. This understanding is close to the logic of the Enemy Criminal Law, formulated by Günther Jakobs, which distinguishes citizens from social "enemies" and relativizes fundamental guarantees based on the dangerousness attributed to the agent. In contrast, Luigi Ferrajoli's Penal Guarantees uphold the universality of fundamental rights, especially the right to life, regardless of social status or the legality of an individual's conduct. Added to this is the high difficulty of proving these cases, stemming from a scarcity of witnesses, fear of reprisals, and limitations on technical evidence, factors that frequently lead to decisions influenced by social stigmatization. Therefore, it is concluded that the analysis of self-defense in drug trafficking contexts must be strictly technical, objective, and equitable, avoiding selective interpretations incompatible with the principles of the Democratic Rule of Law.