Expansão penal via princípio da precaução : críticas à transposição do princípio da precaução para os crimes de perigo abstrato

• Autor(a) principal: Machado, Vitor Paczek
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_RS
• Texto Completo: http://tede2.pucrs.br/tede2/handle/tede/8272
• topic: Direito Penal; Princípio da Precaução; Crimes de Perigo Abstrato; Incerteza Científica; CIENCIAS SOCIAIS APLICADAS::DIREITO

The research seeks to answer whether the precautionary principle has an argumentative power to be inserted in criminal law in a valid way, especially in crimes of abstract danger. For this, after emphasizing the meaning of the precautionary principle from environmental law, it is explained the transposition to the criminal field, especially in the scope of abstract danger, space of reference for criminal expansion. With the introduction of the notion of danger, abstract danger connects with precaution, where criminal law theorists propose a re-reading of danger through uncertainty. From this approach, two criticisms are elaborated, both inserted in the third chapter. One is by the epistemology of uncertainty, confronting the fundamental idea of the precaution given by environmental law theorists (uncertainty) with the notions of complexity, speed and antideterminism of thought, where it is concluded by the insufficiency of the concept of precaution. Even with this epistemological obstacle, another critical approach is faced by the perspective of criminal law, which orbits in two general argumentative axes: a preliminary and a principal judgment that is based on considerations of uncertainty properly. In the preliminary judgment, it is argued that the characteristics of the precautionary principle are incompatible with criminal law, namely the alleged reversal of the burden of proof, the attribute of reversibility of instrumental precautionary measures and, finally, the desire to protect generations future. Then the criticisms of the second general bloc (focused on scientific uncertainty) are threefold. The first is in the notion of presumption of danger; the second in the idea of delegating it to administrative accessority; and the third is directed to the thesis of identification of danger by evidence. With this framework it was possible to place our position, which considers the principle of precaution inadequate for criminal law and even harmful, because it has the power to legitimize a criminal law of the enemy by the rhetoric of the criminal law of risk, which is illegitimate; uncertainty must be accepted (because it is a contemporary feature), but caution is rejected, since it is better risk and uncertainty with criminal and procedural guarantees than with authoritarianism.