Brazil: Federal Court Decides In Favor Of The Application Of The Principle Of Immateriality In A Criminal Process Involving An Environmental Crime

Two individuals were charged by the Federal Prosecutor (MPF) with the crime typified in art. 34 of Law nº 9.605 of 1998, combined with art. 1 of Ordinance No. 093 of 2004 of IEF/MG, on the grounds of art. 386, III, of the Penal Procedure Code. Such provision typifies as crime "fishing within the period when fishing is prohibited or in places that were shut down by an entity with jurisdiction".

According to the information filed in April 2008, the defendants were caught fishing in a shutdown place, with possession of a fish of the "dourado" (Coryphaenidae) species, weighing approximately seven kilos.

The first instance, the Sole Court of the City of Passos (MG) Sub-district, understood that the principle of immateriality should apply to the case, since defendants were not using prohibited fishing gear, neither did they fish an endangered species or a species with prohibited fishing or transportation. According to the court's understanding, the civil and administrative sanctions set forth for the case, such as seizure of equipment and fine are sufficient for the purposes of reproachability of the conducts performed by the defendants.

Dissatisfied, the MPF appealed the decision to the Regional Court of the First Region (TRF 1- Proceedings n.º 0002290-93.2010.4.01.3808). The Prosecution alleges that the defendants' conducts went beyond the penal provision, when they actually caught 20 kg of "dourado". In addition, the MPF noted that when it comes to conducts that are harmful for the environment, there is no penal irrelevance, since it is a juridically unwaivable asset.

While judging the appeal, the TRF1's third Panel decided in favor of acquitting the accused, confirming the first instance decision. In the Reporting Appellate Judge's vote it was considered that case law has been recognizing in exceptional cases and cautiously the material lawfulness of crimes against the environment when the perpetrator's conduct does not reach great reproachability and the social danger and the offensiveness of the action are irrelevant.

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