Do crime de maus-tratos contra cães e gatos à (im)possibilidade de acordo de não persecução penal : uma análise da atuação penal em defesa do animal

Abstract

For the research, the qualitative method of hermeneutic bias was used, based on documental and bibliographic collection. The objective of this work is to analyze the brazilian penal system active in crimes against animals, in order to establish coherence criteria that justify the means used and legitimize repressive state action. To pursue this objective, firstly, an examination of the theory of the legal good is carried out, as a justifying factor of the criminal application. Understood the criterion of its applicability, the legal good protected in crimes against animals is investigated, in the face of varied doctrinal understandings, to then analyze the constitutional protection conferred and the possibility of animals being victims of crimes. With these assumptions built, it becomes possible to carry out an analysis on the new typification of the crime of mistreatment against dogs and cats, as well as on the possibility, or not, of proposing a non-prosecution agreement (ANPP) for violent acts against animals. Regarding the crime of mistreatment of dogs and cats, the legislator increased the penalty, through Law No. 14.064/20, to two to five years of reclusion. Faced with such a significant increase in the sanction, it is necessary to verify the proportionality of the measure, comparing it with crimes that protect different legal interests, in order to establish the constitutionality of the amendment. It takes into account the singularities of the maxim of proportionality, considering that it is responsible for establishing adequate measures and in accordance with the criminal types created. With regard to the non-prosecution agreement, instituted by Law nº 13.964/19, it was legislated for the impossibility of its pact in crimes of violent intent, however, the National Congress did not specify whether aggressiveness should be considered exclusively in cases involving people, or whether it could also reach acts against animals. The work intends to address this gap and stipulate a path to be considered. Finally, it was concluded that the new law on mistreatment of dogs and cats is proportional, which should even be extended to other species of animals, and, under the procedural aspect, by considering the non-human animal as a victim of violent acts, making it impossible to file an ANPP. Certain conclusions contribute to the realization of the constitutional protection granted to animals, as well as the protection of life, physical integrity and animal welfare with legal interests protected by Criminal Law. [resumo fornecido pelo autor]