Lei de crimes ambientais: análise de sua eficácia na tutela do meio ambiente através de incriminações de perigo abstrato

Abstract

In the context of a global risk society, diffuse interests like those relating to the environment, when infringed, characterise extensive consequences without spatial or temporal references, in addition to the reflective character (boomerang effect) which is the ability to affect the responsible agent itself for producing the risk. The social desire for security leads to the expansion of criminal legal protection to act for the supra-individual interests and adopt preventive measures via abstract danger incrimination, which develop as a legal category capable of facing challenges posed in the contemporary context. The concern relating to environmental protection is relevant since the ecologically balanced environment is directly related to a healthy-related quality of life and well-being. This research aims at identifying whether the Environmental Crimes Law (Law No. 9,605 / 98), in codifying crimes of abstract danger, is effective in protecting the environment. The law codifies several types of sanctions via incrimination, the consummation of which does not depend on the harmful result, since the law understands as unlawful a certain behaviour or activity suitable for producing harm to protected legal property. In this hypothetico-deductive research, it is considered as hypothesis that, respecting ultima ratio, this legislative instrument constitutes the promotion and consolidation of a Socioenvironmental Democratic State, as the law effectively prevents the degradation of the environment. This investigation is qualitative and adopts a deductive method in which data obtained via bibliographic research is analysed alongside documental data within Environmental Law. The study finds that the Environmental Crimes law is rooted in legality, and shows itself as able to protect the environment under the terms of constitutional command since, by making use of the abstract danger incrimination codification, it allows the condemnation of a conduct before any harm is brought to the environment. However, widespread environmental destruction in contemporaneity evidences that this legislation lacks social effectiveness as it does serve as a discouraging element against acts of harm to the environment.