O ecocídio e a proteção do meio ambiente pelo direito penal: reflexões para construção de uma justiça ambiental

Abstract

The recent ecological disasters that have occurred in Brazil, specifically in the municipalities of Mariana and Brumadinho, in the state of Minas Gerais, have brought to light one of the most worrying problems today, which is the effectiveness of criminal protection of the environment. In face of this reality, the thesis now defended is based on the idea of using Criminal Law as an effective means of protecting the environment, through the creation of crimes and the sanction of penalties proportional to the seriousness of the conduct practiced. Its main objective is to analyze the possibility of typifying ecocide in Brazil and its effective contribution to greater efficiency of criminal protection of the environment through the adoption of more rigorous procedures. The concept of ecocide is analyzed through doctrinal constructions, revealing itself in general lines when there is a massive destruction of the environment. It is a widely discussed topic, including at an international level, notably after the manifestation of the Public Prosecutor's Office that acts in the International Criminal Court and which in November 2016 manifested itself by the possibility of that Court prioritizing the judgment of causes of an environmental nature. For the construction of the possibility of including the crime of ecocide in the national order, it was necessary to go through the analysis of other relevant problems, such as the criteria that guide the choice of legal assets by the legislator, whose discretion is no longer justified in the face of crimes that affect all humanity, a speech that will be contextualized in the current risk society we live in. The protection of the environment is also studied through mechanisms of administrative sanctioning law, as well as checking the importance and consequences of environmental compliance in the accountability of companies. In seeking to protect the environment through Criminal Law, it is demonstrated the necessary observance of its guiding principles and, in particular, legality and precedence as factors of guarantee of legal security in a democratic state of law. The research method adopted was the inductive one, consisting of bibliographic, documentary and jurisprudential analysis on the subject. The thesis is divided into three chapters, the first being dedicated to the presentation of the basic criminal law institutes applied in the standardization of environmental protection. The second, based on the initial analysis on the law of disasters, studies the possibility of typifying the ecocide in Brazil, further investigating the treatment given to cases that occurred before Law 9.605/98 and, subsequently, the disasters of Mariana and Brumadinho. The last chapter proposes to analyze the competence of the International Criminal Court for the process and judgment of environmental crimes, without neglecting the possibility of conferring, through the Brazilian criminal process, in the internal order, more severe treatment to environmental crimes, including the possibility of recognition displacement of competence in the causes of serious human rights violations involving environmental crimes. It was concluded that Criminal Law is an important control instrument in the protection of the environment, but in addition to the classification of conduct, it is necessary to have a uniform treatment of the issue in the internal system and also at the international level.