32.1. Criminal
Legal protection of the environment has been subject of a clear evolutionary process. Until the mid-twentieth century, the protection of the environment as a legal asset with an autonomous value practically did not exist.[i] With the advent of the Federal Constitution of 1988, the environment was raised to a constitutional right guaranteed to every citizen and, from there, the so-called triple accountability – civil, administrative and criminal – for acts harmful to the environment arose.[ii]
From the constitutional relevance that the Legislator decided to give to the protection of the environment, its condition of criminal juridical asset came with express provision for criminal liability of individuals and legal entities for conduct and activities harmful to the environment, regardless of the administrative accountability and the obligation to recover damages (art. 225, §3rd, FC).[iii]
To regulate this constitutional provision, Law n. 9.605, dated February 12, 1998, was created, a decade later, in which the criminal liability for environmental crimes was defined. According to the infra-constitutional text “whoever, in any case, practices the crimes provided for in this Law, incurs the penalties imposed on it, to the extent of its guilt, as well as the officer, the administrator, the board and technical body member, the auditor, the manager, the representative or agent of a legal entity, who, knowing about the criminal conduct of another, fails to prevent its practice, when it could act to avoid it”(art. 2, of Law no. 9,605/1998).
Therefore, in addition to the criminal responsibility of that person who, with a given action, contributes to the criminal result, the Brazilian criminal law also recognized the improper omissive criminal responsibility of that manager, who, knowing the criminal activity, fails to act to prevent its outcome, raising officers, administrators, members of boards of directors, managers or any other company representative to the condition of guarantor.[1]
As in any other offense, also in the context of environmental crimes, the criminal liability of individuals should be personal and subjective, that is, the harmful result shall present a clear causal link with a conduct – commissive or omissive – of an individual so that the application of criminal law becomes legitimate.
However, crimes committed in large corporate structures pose the challenge of individualizing conduct and roles, consequently, of the correct, legitimate, and proportional criminal liability.[iv]
The hallmark of corporate crime is the division of tasks vertically, that is, the dissociation between those who decide to commit a crime and those who actually commit it in the company’s daily activities, and the horizontal division of tasks, that is, a very clear division of roles and responsibilities between different boards and departments.[v]
From this dispersion of roles in large corporations, the risk of impunity arose, that is, the risk that no individual will be held responsible for a given fact that is harmful to the environment because the complete criminal action is not within the scope of anybody’s individual duties.
In order to solve situations like these, which are increasingly common in environmental crimes committed by large corporations, traditional concepts of criminal law were adapted to apply to corporate crime.
On the one hand, in relation to commissive crimes, it is possible to speak of criminal liability of administrators for mediate authorship in situations in which managers use subordinates for criminal practice. In this case, administrators may be aware and intent on criminal practice, but they use their hierarchical subordinates to effectively act. In this context, they can be fully responsible for the actions of their employees if it is proven that these employees acted according to the orders given by them.
On the other hand, there are the improper omissive crimes, those in relation to which the administrator omits when it should prevent the result. To better understand this type of criminal accountability, it is necessary, first, to analyze the nature of crimes against the environment.
The environmental crime is rarely practiced with direct intent, that is, the author of the crime rarely wished to deliberately harm the environment. Normally, when we are dealing with criminal liability for environmental crimes, we are dealing with indirect intent – a situation in which the agent wants other result but predicts and accepts that the result harmful to the environment will occur – or guilt – a situation in which the agent predicts the harmful result to the environment but hopes to be able to avoid it (conscious guilt) or does not even expect that that particular damage to the environment could occur (unconscious guilt).
The environmental offender, at least in the scope of the business activity, acts on behalf and for the benefit of the company, and the harmful result to the environment is like an undesirable by-product of the production process.[vi] However, it is from this concept that the condition of guarantor of the company’s administrators is born and, therefore, their failure to avoid the harmful result to the environment becomes criminally relevant.
This is because, in the search for the economic result desired by the business activity, the entrepreneur creates the risk of the occurrence of the harmful result to the environment and, for this reason, it has, by legal definition (art. 13, §2, c, of the Brazilian Penal Code), the duty to act to prevent this criminal outcome. It is what Heloísa Estellita calls the binomial freedom-responsibility, that is, from the freedom to manage the company in order to achieve the best economic result comes the responsibility to ensure that the business activity does not result in risks to the community.[vii]
It is evident, however, that it is not enough for criminal liability that the administrator is included in the articles of association of the company, under penalty of incurring unacceptable strict liability in criminal matters. The administrator shall in fact exercise management activities of that specific activity area that resulted in the damage, that is, this duty to act to prevent the result must be within the sphere of duties of the individual – administrator, officer, manager – to be held responsible.
In small companies, however, the situation is different and accountability for omission of managing partners is often direct, since, in these cases, it is assumed that the manager must be aware of the duties of all its employees. In small companies, it is possible to know in depth the roles that are given to each of its employees and the administrator must know and inspect how these activities are carried out. For the Superior Court of Justice, “not being the case of a large legal entity, where many agents could practice criminal conduct in favor of the company, but of a small legal entity, where decisions are unified in the manager and the crime comes of the legal entity in its favor, the causal link between the result of the conduct verified by the activity of the company and the personal responsibility and subjective fault of its manager can be admitted.” (STJ, HC 71.109/PA, 6th Panel, Rapporteur Minister Néfi Cordeiro, DJe 08/26/2016).
But in large corporations, it is worth repeating, the difficulty of delimiting duties and powers is great and, usually, the tasks are so fragmented and compartmentalized, that no individual has in its sphere of duties enough elements to enable the configuration of a typical conduct.
In these cases, in addition to the impunity of individuals, the legal system also faced the complete ineffectiveness of the constitutional rule that allowed criminal liability of legal entities. This is because the infra-constitutional legislation limited this criminal liability of companies to cases in which the violation was committed by decision of their legal representative and for their benefit.
In this scenario, national jurisprudence historically understood that corporate environmental crimes are multi-subjective and of necessary competition, that is, if it is not possible to individualize conduct within large corporations in order to criminally hold individuals accountable, it would also not be possible to punish legal entities separately, whose criminal liability was subject and limited to the concomitant criminal liability of individuals who would have acted on behalf of the entity. It was what the doctrine came to call the Double Imputation Theory, accepted by the Superior Court of Justice until 2013.
It was only with the paradigmatic judgment of Extraordinary Appeal n. 548.181/PA, of the Supreme Court, that the isolated criminal liability of the legal entity has now been admitted in cases where, given the complexity of the business structure, it is impossible to identify the individuals to whom a criminal act could be assigned, [viii] which it was agreed to be called the Assignment Theory. For Minister Rosa Weber, Rapporteur of the appeal responsible for changing the jurisprudential understanding, “the complex corporate organizations nowadays are characterized by the decentralization and distribution of roles and responsibilities, being inherent, in this reality, the difficulties to attribute the illicit fact to a concrete person” (STF, RE 548.181/PR, Rapporteur Minister Rosa Weber, 1st Panel, j. 08/06/2013, DJe 10/29/2014). Even so, it is possible to identify conducts “to clarify whether individuals acted or deliberated in the regular exercise of their duties internal to the company, and also to verify whether the performance occurred in the interest or benefit of the corporate body” (STF, RE 548.181/PR, Rapporteur Minister Rosa Weber, 1st Panel, j. 08/06/2013, DJe 10/29/2014), in order to make at least the criminal liability of the legal entity feasible.
In spite of the modification of the Supreme Court jurisprudential guidance, which is admitted by the Superior Court of Justice [2], and emerged as an attempt to reduce impunity for environmental crimes committed within companies with complex corporate structures, the truth is that the difficulty faced by the legal system to impose criminal reprimands in these cases, without harming basic principles of criminal law, points to the conclusion that administrative sanctions are much more efficient and effective in regulating complex relationships in business life than the indiscriminate use of criminal law.
Bibliography
[1] For the Brazilian Penal Code, the figure of the guarantor is the one who has the duty to act to prevent the criminal result: “Art. 13 – The result, on which the existence of the crime depends, is only attributable to the person who caused it. Cause is the action or omission without which the result would not have occurred. (…) §2 – The omission is criminally relevant when the person who omits should and could act to avoid the result. The duty to act is the responsibility of the person who: a) has by law an obligation of care, protection or surveillance; b) otherwise, assumed the responsibility for preventing the result; c) with its previous behavior, created the risk of the result occurring.
[2] STJ: AgRg in RMS n. 48.851, Rapporteur Justice Nefi Cordeiro, j. 20.02.18; AgRg in HC 393.284/PI, Rapporteur Justice Rogério Schietti Cruz, j. 09/05/2017; RHC n. 88.264, Rapporteur Justice Reynaldo Soares da Fonseca, j. 08.02.18; AgRg in RMS n. 48.085 , Rapporteur Justice Gurgel de Faria, j. 05.11.15; RMS n. 39.173, Rel. Min. Reynaldo Soares da Fonseca, j. 06.08.15.
[i] Da Cruz, Ana Paula Fernandes Nogueira. Crimes Ambientais. Comentários à Lei 9.605/98. Ana Maria Moreira Marchesan e Annelise Monteiro Steigleder (org.). Porto Alegre: Livraria do Advogado Editora, 2013, p. 27.
[ii] Marchesan, Ana Maria Moreira e Capelli, Silvia. Crimes Ambientais. Comentários `s Lei 9.605/98. Ana Maria Moreira Marchesan e Annelise Monteiro Steigleder (org.). Porto Alegre: Livraria do Advogado Editora, 2013, p. 23.
[iii] Azevedo, Carlos Henrique Almeida José. A responsabilidade penal isolada das pessoas jurídicas em crimes ambientais. Revista dos Tribunais. Revista do Direito Ambiental, vol. 95/2019, pp. 77-104, jul-set. 2019.
[iv] Estellita, Heloísa. Quando o crime se oculta na empresa, Folha de São Paulo, 01/11/2015.
[v] idem, ibidem.
[vi] Da Cruz, Ana Paula Fernandes Nogueira. Crimes Ambientais. Comentários `s Lei 9.605/98. Ana Maria Moreira Marchesan e Annelise Monteiro Steigleder (org.). Portol Alegre: Livraia do Advogado Editora, 2013, p. 27.
[vii] Estellita, Heloísa. Responsabilidad por omisión de los membros de consejos de administración. Derecho Penal, a`no IV, número 7, pp. 78-79.
[viii] Azevedo, Carlos Henrique Almeida José. A responsabilidade penal isolada das pessoas jurídicas em crimes ambientais. Revista dos Tribunais. Revista do Direito Ambiental, vol. 95/2019, pp. 77-104, jul-set. 2019.
Author: Isadora Fingermann
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Last update: 15/09/2021