O direito de intervenção como alternativa ao direito penal ambiental

Abstract

In order to use the criminal law as an instrument of environmental protection, based on the theoretical framework of penal dogma and the sociology of risk, this study aims to analyze the possibility of creating the right of intervention, proposed by Winfried Hassemer, as an alternative environmental criminal law. It begins with the analysis of theories of the criminal legal interest, recognizing criminal law as a classical framework, which must respect individual guarantees and act in a subsidiary manner. However, the environmental criminal model presents itself with a modern framework evading criminal tradition. Once this is done, the study of the theory of risk society is developed, with the recognition that in the environmental criminal sphere there is a context of organized irresponsibility, as a consequence of symbolic criminal law. As a result, the elements that indicate the ineffectiveness of Law 9605/98 and its symbolic use have been studied. With this objective, the appeals for environmental crimes judged by the TJRS in 2016 were examined, which point to a low practical result with almost 70% of acquittals and prescriptions. In this sense, it is recognized that environmental criminal law has been counterproductive to the effective protection of the environment, and it is necessary to use alternative means. Two options have been studied: second speed criminal law and the right to intervene. Between the two models, the right to intervene was considered more appropriate because it was outside the criminal sphere, which avoids its symbolic use and increased criminal expansion. However, for its implementation within the Brazilian system, it would be necessary to create a new legal branch, so we considered the systematization of the right of intervention, from the approximation with the sanctioning administrative sphere. The method used is the analytical one, having as methodological procedure the bibliographical and documentary analysis. With the results obtained it is possible to recognize that the sanctioning administrative law restructured from the right of intervention devised by Hassemer, can be an alternative instrument to criminal tutelage, which presents advantages, since its anticipated action is legitimate, it is not binding the criminal guarantees, and has serious penalties, especially in the liability of the legal entity. Nevertheless, the use of another instrument can avoid the consequences of the organized irresponsibility that a symbolic criminal law presents, opening space for the discussion of more efficient public policies in the environmental protection.