{"id":1809,"date":"2025-09-17T13:41:38","date_gmt":"2025-09-17T16:41:38","guid":{"rendered":"https:\/\/www.paulofreitasribeiro.adv.br\/en\/?p=1809"},"modified":"2025-09-17T20:37:47","modified_gmt":"2025-09-17T23:37:47","slug":"environmental-criminal-law-restorative-justice-and-the-urgency-of-alternatives-to-punitive-power","status":"publish","type":"post","link":"https:\/\/www.paulofreitasribeiro.adv.br\/en\/2025\/09\/17\/environmental-criminal-law-restorative-justice-and-the-urgency-of-alternatives-to-punitive-power\/","title":{"rendered":"Environmental Criminal Law, Restorative Justice, and the Urgency of Alternatives to Punitive Power"},"content":{"rendered":"\n

Matheus Borges Kauss Vellasco\u00b9<\/strong><\/p>\n\n\n\n

Environmental protection<\/strong> 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<\/em>, 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<\/strong> emerges as a potentially valuable tool, capable of complementing or even replacing traditional criminal prosecution.<\/p>\n\n\n\n

The Challenges of Criminal Law in Complex Environmental Cases<\/strong><\/h2>\n\n\n\n

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 \u201cadministrativization\u201d\u00b2 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<\/em> and the widespread application of vague and indeterminate legal definitions\u00b3.<\/p>\n\n\n\n

The possibility of holding legal entities criminally liable \u2014 once widely questioned but now accepted by jurisprudence \u2014 still faces significant procedural gaps\u2074, mainly because there has been no legal adaptation of Brazilian criminal procedure to address its specificities.<\/p>\n\n\n\n

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 cases\u2075 create dogmatic and procedural obstacles that are nearly insurmountable for the application of Criminal Law.<\/p>\n\n\n\n

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 \u2014 particularly in cases of improper omission crimes<\/em> \u2014 and the identification (and proof) of intent also present nearly insurmountable barriers.<\/p>\n\n\n\n

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 \u2014 one that often masks abuse of punitive power and creates a merely symbolic pretense of resolution\u2076.<\/p>\n\n\n\n

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<\/strong> functions\u2077.<\/p>\n\n\n\n

Lastly, it is also worth noting that in other legal realms, there are considerable hurdles to achieving a resolutive outcome \u2014 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.<\/p>\n\n\n\n

Restorative Justice: A Necessary and Promising Intersection<\/strong><\/h2>\n\n\n\n

In this context, Restorative Justice<\/strong> 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.<\/p>\n\n\n\n

Unlike the traditional criminal system \u2014 which focuses on past actions with a view to imposing punishment \u2014 Restorative Justice seeks to focus on the present and future. Grounded in broad participation of all actors involved \u2014 the offender, the victim, and the community \u2014 it aims to meet the needs of those affected through a voluntary process\u2078. It is essential that environmental preservation demands, even when there is no individualized victim due to the diffuse nature<\/em> of environmental harm, be included as a core component of the restorative process.<\/p>\n\n\n\n

Procedural Instruments in Brazilian Law<\/strong><\/h2>\n\n\n\n

Brazilian law already offers procedural instruments that may concretize the goals of Restorative Justice. The Non-Prosecution Agreement (ANPP)<\/strong>, 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.<\/p>\n\n\n\n

More importantly, the prerogative to stipulate unnamed conditions<\/em> allows, for example, the inclusion of independent technical-scientific investigations aimed at identifying causes and preventing future accidents.<\/p>\n\n\n\n

Still within the scope of the ANPP, one could consider a combined \u2014 and extensive \u2014 interpretation with Article 44 of the Brazilian Penal Code, which allows the replacement of custodial sentences with restrictive penalties<\/em> 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)<\/strong> that produce criminal effects<\/em>.<\/p>\n\n\n\n

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 \u2014 particularly due to their superior potential for tangible outcomes compared to the \u201csolutions\u201d usually proposed in the criminal sphere.<\/p>\n\n\n\n

Conclusion<\/strong><\/h2>\n\n\n\n

Criminal Law lacks sufficient tools to provide an adequate legal response to complex environmental cases. Restorative Justice<\/strong>, with its focus on repair, prevention, and active involvement of those affected, represents a promising alternative \u2014 or at least a complementary approach.<\/p>\n\n\n\n

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<\/strong> that is not parasitic \u2014 feeding on illusory functions and incoherent goals \u2014 but one that instead strives for genuine prevention<\/strong> and, when prevention is not enough, for repair that is as effective and immediate as possible<\/strong>.<\/p>\n\n\n\n

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  1. 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<\/a>.<\/li>\n
  2. Jos\u00e9 Danilo Tavares Lobato, \u2018Perspectives of the Theory of Crime in Times of Crisis. Anatomy of Crime\u2019 (2019) 9 RCC 97.<\/li>\n
  3. Alessandro Baratta, \u201cInstrumental and Symbolic Functions of Criminal Law: Guidelines for a Theory of the Legal Good\u201d [1994] RBCC.<\/li>\n
  4. Helena Regina Lobo da Costa, \u2018Criminal Liability of Legal Entities\u2019 in IBCCRIM, 25 Years of IBCCRIM (D\u2019Pl\u00e1cido 2017) 91,108. See also: Lu\u00eds Paulo Sirvinskas, Criminal Protection of the Environment (4th ed., Saraiva 2011) 102.<\/li>\n
  5. It is worth clarifying to the reader what is meant by the term \u201ccomplex environmental cases,\u201d 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.<\/li>\n
  6. RODR\u00cdGUEZ MESA, M\u00aa Jos\u00e9. The Reasons of Criminal Law. Revista Electr\u00f3nica de Ciencia Penal y Criminolog\u00eda, no. 09-10, Dec. 2007. Available at: http:\/\/criminet.ugr.es\/recpc\/09\/recpc09-10.pdf<\/li>\n
  7. ZAFFARONI, E. Ra\u00fal; BATISTA, Nilo; ALAGIA, Alejandro; SLOKAR, Alejandro. Brazilian Criminal Law. Rio de Janeiro: Revan, 2011, p. 77.<\/li>\n
  8. Rego OC, \u2018For a Socioenvironmental Restorative Justice in Brazil\u2019 (2022) JR UEPG: CSA 1\u201313. Available at: https:\/\/revistas.uepg.br\/index.php\/sociais\/article\/view\/17854<\/li>\n<\/ol>\n
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