Matheus Borges Kauss Vellasco¹
Environmental protection is a matter of global urgency. In Brazil, the 1988 Federal Constitution elevated the right to an ecologically balanced environment to the status of a diffuse right, unequivocally establishing a mandate for preservation. At the infra-constitutional level, the 1998 Environmental Crimes Law emerged as one of the main instruments of this legal protection. However, the experience with high-profile environmental cases in Brazil over recent decades has revealed the inadequacy and insufficiency of Criminal Law to deal with the complexity of such events. In this scenario, Restorative Justice emerges as a potentially valuable tool, capable of complementing or even replacing traditional criminal prosecution.
The Challenges of Criminal Law in Complex Environmental Cases
Criticisms of Environmental Criminal Law are, for the most part, well-founded. From a legislative standpoint, there are dissonances with the fundamental principles of criminal law doctrine. One need only observe the effects of the so-called “administrativization”² of Criminal Law in environmental matters, with the “transformation” of administrative acts into the substance of criminal offenses, along with excessive use of blank criminal norms and the widespread application of vague and indeterminate legal definitions³.
The possibility of holding legal entities criminally liable — once widely questioned but now accepted by jurisprudence — still faces significant procedural gaps⁴, mainly because there has been no legal adaptation of Brazilian criminal procedure to address its specificities.
This scenario foretells the challenges of enforcing Environmental Criminal Law even in ordinary cases. However, in certain situations, the difficulties are considerably exacerbated. The factual nuances of complex environmental cases⁵ create dogmatic and procedural obstacles that are nearly insurmountable for the application of Criminal Law.
Individualizing conduct within organizations or enterprises involving dozens or even hundreds of individuals in key positions is often an unachievable task, especially when the causal chain is long and composed of interrelated actions. The delimitation of legal causality — particularly in cases of improper omission crimes — and the identification (and proof) of intent also present nearly insurmountable barriers.
These difficulties can result in “stillborn” criminal proceedings or convictions based on strict liability, which violates fundamental guarantees. Amid public outcry and media pressure during crisis scenarios, there is a real risk of improper flexibility in procedural guarantees in pursuit of a “quick response” to society — one that often masks abuse of punitive power and creates a merely symbolic pretense of resolution⁶.
Worse still: beyond the inefficiency in achieving its intended goals, this misguided use of punitive power ends up diverting attention and resources from actions that could actually serve restorative and preventive functions⁷.
Lastly, it is also worth noting that in other legal realms, there are considerable hurdles to achieving a resolutive outcome — especially due to the lack of effective participation by direct and indirect victims of environmental disasters, and the extremely long time needed to reach settlements or enforce court-ordered obligations.
Restorative Justice: A Necessary and Promising Intersection
In this context, Restorative Justice emerges as a promising tool. Its guiding principles, when applied to this category of cases, would guarantee a focus on environmental damage repair and prevention, as well as on the needs and interests of individual victims and affected communities.
Unlike the traditional criminal system — which focuses on past actions with a view to imposing punishment — Restorative Justice seeks to focus on the present and future. Grounded in broad participation of all actors involved — the offender, the victim, and the community — it aims to meet the needs of those affected through a voluntary process⁸. It is essential that environmental preservation demands, even when there is no individualized victim due to the diffuse nature of environmental harm, be included as a core component of the restorative process.
Procedural Instruments in Brazilian Law
Brazilian law already offers procedural instruments that may concretize the goals of Restorative Justice. The Non-Prosecution Agreement (ANPP), established by Art. 28-A of the Brazilian Code of Criminal Procedure, is a potentially effective mechanism. The ANPP covers the majority of environmental crimes and prioritizes damage reparation, offering tools capable of directing compensatory resources directly to victims and to organizations dedicated to environmental protection.
More importantly, the prerogative to stipulate unnamed conditions allows, for example, the inclusion of independent technical-scientific investigations aimed at identifying causes and preventing future accidents.
Still within the scope of the ANPP, one could consider a combined — and extensive — interpretation with Article 44 of the Brazilian Penal Code, which allows the replacement of custodial sentences with restrictive penalties in cases of negligent crimes, regardless of sentence length, in order to expand its applicability. Another possibility would be the establishment of Conduct Adjustment Agreements (TACs) that produce criminal effects.
Both alternatives still require specific dogmatic development within legal doctrine and jurisprudence. Nonetheless, any deepening of negotiations that prioritize restorative actions in complex environmental cases is viewed as positive — particularly due to their superior potential for tangible outcomes compared to the “solutions” usually proposed in the criminal sphere.
Conclusion
Criminal Law lacks sufficient tools to provide an adequate legal response to complex environmental cases. Restorative Justice, with its focus on repair, prevention, and active involvement of those affected, represents a promising alternative — or at least a complementary approach.
Adopting this perspective means pursuing more effective and fair solutions that genuinely protect the environment, meet the needs of victims, and uphold fundamental rights, while avoiding wrongful convictions and ineffective trials. It is time to move toward an environmental justice model that is not parasitic — feeding on illusory functions and incoherent goals — but one that instead strives for genuine prevention and, when prevention is not enough, for repair that is as effective and immediate as possible.
- Ph.D. candidate and Master in Criminal Law from UERJ. Specialist in Economic Criminal Law and Theory of Crime from Universidad Castilla-La Mancha. Bachelor of Laws from PUC-Rio. Lawyer and partner at Paulo Freitas Ribeiro Advogados Associados. E-mail: matheusborges@paulofreitasribeiro.adv.br.
- José Danilo Tavares Lobato, ‘Perspectives of the Theory of Crime in Times of Crisis. Anatomy of Crime’ (2019) 9 RCC 97.
- Alessandro Baratta, “Instrumental and Symbolic Functions of Criminal Law: Guidelines for a Theory of the Legal Good” [1994] RBCC.
- Helena Regina Lobo da Costa, ‘Criminal Liability of Legal Entities’ in IBCCRIM, 25 Years of IBCCRIM (D’Plácido 2017) 91,108. See also: Luís Paulo Sirvinskas, Criminal Protection of the Environment (4th ed., Saraiva 2011) 102.
- It is worth clarifying to the reader what is meant by the term “complex environmental cases,” which will be done based on some specific vectors. Regarding the triggering event, these involve accidents occurring within the scope of an economic enterprise, managed by one or more companies, currently or in the past, characterized by the execution of activities that inherently carry environmental risk, even if permitted and regulated. In terms of impact and consequences, they cause large-scale environmental damage and commonly affect communities whose livelihoods are directly or indirectly dependent on the natural resources impacted by the accident. Regarding the analysis of causality, these are cases with multifactorial explanations, due particularly to the long causal chain involving the design, construction, and operation of the structure, as well as their technical complexity, which especially makes expert investigations into the origin of the accident exceedingly difficult. Finally, concerning the management and operation of the enterprises, there is a plurality of agents in technical or executive decision-making positions, generating significant fragmentation of the decision-making process, which crosses different (and specific) technical and executive issues, with the additional involvement of the Public Authority, especially in the scope of licensing or inspection activities.
- RODRÍGUEZ MESA, Mª José. The Reasons of Criminal Law. Revista Electrónica de Ciencia Penal y Criminología, no. 09-10, Dec. 2007. Available at: http://criminet.ugr.es/recpc/09/recpc09-10.pdf
- ZAFFARONI, E. Raúl; BATISTA, Nilo; ALAGIA, Alejandro; SLOKAR, Alejandro. Brazilian Criminal Law. Rio de Janeiro: Revan, 2011, p. 77.
- Rego OC, ‘For a Socioenvironmental Restorative Justice in Brazil’ (2022) JR UEPG: CSA 1–13. Available at: https://revistas.uepg.br/index.php/sociais/article/view/17854