Responsabilidade penal do gestor público em crimes ambientais: uma alternativa para a maior efetividade da tutela penal do meio ambiente

Abstract

Environment´s preservation is a fundamental right and a worldwide concern. Environmental Law seeks to protect the environment and ensure that those responsible for its degradation are punished in accordance with the law. The law provides individual and legal entities criminal liability for environmental crimes, but the public manager environmental criminal liability is little debated. Based on the assumption that he is a state representative and has a duty to preserve the environment, this study had as its general objective to analyze the possibility of holding him criminally responsible, as a natural person, for the occurrence of environmental infractions, for non-observance of the his duty to act. For that, it worked environmental concepts, Environmental Law and its principles, as well as triple responsibility for environmental damages; deepened the study of environmental criminal responsibility in the Brazilian and international contexts; investigated the environmental criminal liability of the legal entity, whether private or public, as well as the natural person, including in the person of the public manager; and analyzed a concrete case of environmental crime occurred in Brazil and the possibility of criminally liable to the natural person of the public manager in said case. It is a qualitative research, exploratory type, with bibliographical research and concrete case analysis. Even if it is the last ratio to be used, environmental criminal liability must be considered, instead of the preventive ineffectiveness of civil and administrative reparations. The criminal liability of a private-law legal entity has been widely accepted, even at an international level, but the public law entity still has contrary positions. Nevertheless, there is a legal provision to hold public officials accountable in cases of environmental infractions in which they have not observed their duty to act, pursuant to articles 66, 67 and 69-A of Law 9.605/98. In the emblematic case of the rupture of the Fundão dam, whose environmental, social, economic and cultural consequences persist until today, there is research that associates the respective environmental license concession with the Public Power without observing the necessary requirements. Thus, taking into account that the public manager, as a public official, is a state representative and responsible for environmental preservation, it is possible that it is framed in articles 66, 67 and 69-A of Law 9.605/98, which also include a custodial sentence. It is hoped that this study will sensitize lawmakers, scholars and lawyers about the need to criminally hold the natural person of the public manager for environmental crimes, including imputation of custodial sentence, as a form of general positive prevention, contributing, thus, for the greater efectiveness of enviromental criminal protection.