O conflito entre os princípios de direito ambiental e de direito penal na tutela penal do ambiente : uma proposta de conciliação

Abstract

This dissertation has searched, though an analysis of crisis which environmental protection through criminal law has been immersed, identify the points where the philosophical positions, favorable or contrary to such protection, although equally consistent, contradict itself. For this purpose, it begins with the identification of environmental concerns that risks the subsistence of life in our planet. The society is, nowadays, a risk society and this factor propels the emergence of principles at the international level, which influence the transformation of State into a Environmental State. In Brazil, this transition of a strictly liberal constitutional model to a social and environmental model has created the need of implementation of new instruments to promote this social change, among which figure the Criminal Law instruments described in Law 9605/98. The use of modern legislative techniques in building its models of crimes’s definition, placed this law at the apex of an old debate, which in the past, as today, authors such as Carrara and Hassemer, in a certain context, overestimate the individual, while authors such as Ferri and Shünemann revealed us the society, bringing to the criminal protection of the environment this old contention of defense or repudiation of rights, which reflect on the current infra-constitutional regulatory framework. Finding possible solutions, always looking for a condescending answer, through which can be offered an applicability of criminal law convenient to the preservation of the environment, without disrespecting individual rights, the research will reveal the thought of Dias and Sanches. Therefore, starting with the need to construct a Socio-Environmental State capable to reduce the incompatibility existent between citizens’ rights to freedom, environmental liability, sustainable development and the right to a decent human life with quality, delineate a normative prognosis that permits to match the existent divergences, offering an appropriate trade-off to a sanctioning answer, so that it doesn´t be excessive the coactive cargo to the fundamental rights, when compared with the law infraction.