Garantidor partícipe: razões e critério para um tratamento diferenciador no concurso de pessoas por omissão imprópria

Abstract

Improper omissions are in trend, and Brazilian courts are increasingly resorting to this form of criminal liability. The debates, however, have been developed separately from the perspective of the collective wrongdoing, so that little attention has been paid to the impact of the collective context on omissions liability. Can we actually talk about perpetrator and accessory by improper omission? Should the ways of intervening be differentiated also in improper omissions? Although the importance of adopting a differentiating criterion is widely recognized for commission crimes, there is a paradoxical maintenance of the unitary treatment of perpetrator and accessory in the cases of improper omissions in Brazil. This contrasts with the significant international debate, in which different proposals have been formulated to tackle the problem. In view of this, this work presents the reasons for the distinction between concurring offenders, which is essential to ensure a restrictive interpretation of the crime legal description. In this way, different treatment should be given to different conducts, with a fair and rational distribution of penalties based on the main or accessory wrongdoing. It is therefore proposed to adopt a differentiating criterion for the collective wrongdoing by improper omissions, based on considerations about the normological construction of the wrongdoing of the accessory and on an analytical study of the term aiding. Based on a positive concept of participation, which takes as its horizon the accessory nature of the duty that constitutes the wrongdoing of the accessory, it can be seen that the manifestation in the result of the forbidden risk of their behavior only occurs through the action or omission of a responsible perpetrator, in other words, it manifests itself indirectly in the result. It can therefore be concluded that the diagnostic-distinctive criterion between perpetrator and accessory lies in the peculiar manifestation of the disvalue of the violation of the duties of each of the interveners. Transposing this reasoning, by equivalence, to improper omissions allows us to identify as perpetrator the person who fails to comply with special duties of a primary nature, i.e. duties whose violation manifests its disvalue directly in the result. On the other hand, the person who fails to comply with ancillary duties, whose violation manifests its disvalue indirectly in the result, passing through the sphere of the perpetrator, is accessory.