Environmental protection as a diffuse right in contemporary society - considerations on the principle of criminal offense in abstract danger crimes

Abstract

Criminal Law of the 18th century no longer responds to all the most contemporary questions and, therefore, new challenges are imposed, especially in the face of the necessary protection of vital legal assets such as the environment. A diffuse right, however, intangible, which needs to be protected not only because it is a fundamental right, but for itself: a right to a balanced environment for this and future generations, a right of the environment that protects life in its broad sense, as the concept of broad anthropocentrism recommends. That is why the dogmatic category of the crime of danger, especially in offenses such as pollution, is so important. Not for a mere fidelity to the law, but for the matrix of social behavior that it entails, for the effectiveness in the protection of the right, for the understanding of what constitutes a diffuse right of vital character, for the inherent offensiveness in the cases of not insignificant possibility of damage to the protected right and, mainly, by the understanding that causality, in these cases, can no longer be measured with the precision of the exact sciences. If forensic evidence or effective damage to human health or proof of concrete danger are always required the effectiveness of Environmental Law, in many typical illicit acts, simply loses its raison d'être. Criminal studies, especially some Spanish and Portuguese important authors, judgments of the Superior Court of Justice and the Court of Justice of Rio Grande do Sul in the period between January 2019 and January 2022 are presented to demonstrate the relevance of the theme for Brazilian Criminal Law are studied as well.