A aplicabilidade do princípio da insignificância no direito brasileiro e a interpretação dos vetores fixados pelo STF a partir do julgamento do HC 84.412/SP

Abstract

The principle of insignificance, as a criterion for the exclusion of criminal typicality, so that criminal law should not deal with conducts that cause irrelevant injuries to legal interests, although widely accepted by the national courts, still finds some resistance by a small portion of the Brazilian judiciary. Notable is the position of the 6th Criminal Chamber of the ‘Tribunal de Justiça de Minas Gerais’ (TJ-MG), which argued about the occurrence of a breach of the principle of separation of powers. Still, the Brazilian Supreme Court (STF), in the trial of the HC 84412-0/SP, laid down four requirements that should be respected so that the principle could be applied to individual cases: minimum offensiveness of the conduct of the agent; inexistence of social dangerousness of any action; the behavior of the agent is condemnable in very limited degree; the legal injury caused is inexpressive. By observing those requirements, the major part of the national jurisprudence has denied the application of the principle of insignificance to agents holding unfavorable circumstances, such as repeat offenses or previous criminal record, based in reasons of both objective and subjective order, ultimately related to the value of the action and/or its harmful results and to the agents past criminal behavior. By doing this, they aim to prevent the indiscriminate application of the principle and to discourage the practice of worthless, yet repeated property crimes. However, a jurisprudential disagreement persists between the above mentioned prevailing ideas and those defended by a minor part of the jurisprudence, which only accepts the objective order requirements, rejecting those of subjective nature.