Fundamento e finalidades das penas impostas às empresas por crimes ambientais

Abstract

According to article 225, §3º, of Brazilian Constitution, the Law 9.605/1998 regulated the criminal liability of companies and legal entities for environmental crimes. The norms for its sanction, however, are too simplistic. The Law does not establish enough guidelines to the individualization of the punishment to companies, which is the correct sanction to be applied and how far can this penalty go. This essay intends to present some ways to fulfill these gaps, contributing to a more precise comprehension of the dogmatics of determination of the penalty of the company for environmental crimes in Brazil. The criminal doctrine uses the same premises of the individual crime theory to justify the company’s disapproval. While in the hetero-responsibility the company reproval is objective and explained according to natural people culpability, in self-responsibility, which is the one that is used in Brazil, according with the art. 225, §3º, of Federal Constitution, the sanction is based on the guilt of the company. As the notion of individual guilt is not compatible with the abstract nature of the legal entity, doctrine has formulated equivalent concepts for it, but they does not explain it in the proper way. In order to overcome these obstacles, some authors claim that criminal intervention against legal entities should be based on dangerousness criteria that justifies the imposition of security measures. This proposal, however, has far more problems than the first one. Within the scope of the purposes of the company penalty, the criminal doctrine also uses as reference the justification speeches on the individual sanction theory. The legal entity sanction also has purposes of retribution and prevention, but the content of these purposes are different from the ones of the individual penalty, as a rule, linked to psychological aspects of the offender or the potential offenders. The general positive prevention and the expressive sanction-oriented theories of punishment distance themselves from this psychic apparatus, which makes the application of the company’s criminal law a little less problematic. The disapproval of the company’s crime is highly associated to the idea of punishment as an act of communication. The emphasis of the justification of the penalty is on its expressive-communicative aspect, while the reference of intimidation is substituted for the economical disincentive. In the prevention perspective, the adoption of compliance norms is highly incentivized by the companies, in a context of self-regulation.