The Principle of Bagatela, also known as the Insignificance or Social Irrelevance of the Fact, is one of the most controversial subjects of the Brazilian Criminal Law.
Before going on to the specifically proposed subject, it is necessary to analyze the concept of crime, noting that the Penal Code of 1940, still in force, does not refer to it, only adding in its Explanatory Memorandum that “Criminal offense is considered a crime that the law commits a sentence of imprisonment or detention, either alone or alternatively with the penalty of a fine … “. Such a task, then, fell to the Doctrine. And it provides us with the formal, material, and analytical concepts of crime.
The formal and material concepts, as they correspond, the first the nominal definition (relation of a term to that which designates it) and the second the real definition (the content of the punishable fact), do not deserve further consideration. It is the analytical concept that interests us to dissect, rather than being the cornerstone on which legal dogmaticism is based for the analysis of the structural elements of the crime.
By adopting, as I do, as an analytical concept, crime is the typical, unlawful and guilty fact, a whole commitment occurs with the doctrinal current that had its beginning with Carmignani, for whom the criminal action would be composed of and a moral force represented by guilt, this theory is complemented by Beling with the introduction of typicality and later with the antijuridicity visualized by Binding.
As Welzel has pointed out, “the concept of guilt adds to that of the unlawful action – both a willful and non-willful action – a new element, which is what makes it a crime.”
Guilt is nothing more than personal reproach for the performance of typical and unlawful conduct, and the agent may know the unlawfulness of his behavior, and he is required to act in accordance with the law.
It is necessary to recognize that the crime is perfected, in the words of Cezar Roberto Bitencourt, with guilt. Thus, the typical and unlawful act or omission to constitute a crime must be guilty.
Then, the concepts of type and typicity are confronted, since their distinction is fundamental to the demarcation of the proposed theme.
The standard expression, borrowing the lessons of Mirabete, “is not normally employed by law, but was introduced into the Penal Code with the reform of the General Part of 1984 (article 20). It is a free translation of the German word Tatbstand. The term type expresses the idea of ’model’, ‘scheme’ and is a purely conceptual figure. Type is, in Welzel’s words, the concrete description of the prohibited conduct, that is, the content or matter of the norm. “
Typicity, in turn, is the perfect suitability of a willful or guilty conduct to an incriminating criminal type. Francisco de Assis Toledo states that in order for a human conduct to be considered a crime, it is necessary that it can be initially affirmed as typical, that is, that such conduct conforms to a legal type of crime.
The antijuridicity, according to Heleno Fragoso is the contradictory relation between the typical fact and the norm. The conduct of the typical conduct usually reveals the illegality, since the type is, substantially, type of illicit, that is, model of the conduct that the legislator prohibits and tries to avoid, making it illicit.
Given these considerations, it is necessary to recognize the complexity of such concepts, since typicality is not exhausted in the logical-formal judgment of subsumption of fact to the legal type of crime. The action described typically must prove to be offensive or dangerous to the legal good protected by the criminal law. It can be said, therefore, that human behavior, to be typical, must not only formally conform to a legal type of offense, but also be materially damaging to legal goods, or ethically and socially deprecated. And it is well known that the legislature, when carrying out the drafting work of the criminal type, has in mind only the relevant damages that the incriminated conduct may cause to the legal and social order. However, according to Heinz Zipf, he does not have the means to avoid that even light cases can be achieved.
The human conduct
The trifle principle would then arise to avoid situations such as the one described above and would act as an instrument of restrictive interpretation of the criminal type, with the systematic and political-criminal meaning of the constitutional rule of nullum crimen sine lege, which does nothing else rather than revealing the subsidiary and fragmentary nature of criminal law.
Thus, and practically unanimously, the Principle of Bagatelle would remove the typicality of the fact. The human conduct that would, in theory, relate to an incriminating criminal type, would cease to be so because of the very small damage to the protected legal good, becoming atypical.
By using the expression “practically unanimous,” I do it for no other purpose than to open space for the opposite doctrinal current, which wife understands that such a principle would not have the effect of departing from the typical conduct, but rather the culpability of agent.
There would be no criminal prosecution in the case of ‘small criminality’ offenses, such as theft where the offense was of negligible or negligible value, fraud to obtain an illicit advantage over others when the well-targeted did not at least affect the property of others, etc. Ultimately, there would be a genuine balance between the value of the legal good attained and the devaluation of human conduct that would harm or expose it to danger.
Quoting Hünerfeld, the processing of certain small offenses, that is, of transgressions of rare fault, would not comply with the principle of legality when there was no public interest in its processing. Or, in other words, it would be the legal-material regulation of the trifle principle, personal cause, according to the aforementioned doctrinaire, of exclusion from punishment.
However, the concepts of rare guilt and insignificant consequences do not solve the problem of the high incidence of so-called ‘small-crime’ offenses. It is enough to recall, he warns, that the small cases are characterized by a massive perpetration. Non-punishability, as a true retreat from criminal law, without any compensation, would not overcome the question put on the screen.
In addition to strong stances in either direction, or to remove the typicality or guilt of human conduct that offends the legal order, I would rather lead the discussion to the reasons for adopting the Principle of Bagatelle and to assert that the Gordian knot for its applicability lies in political-criminal issues.
It is not relevant to the Criminal Law to intervene in facts of inexpressive social significance, and so have decided the Courts of the Country repeatedly. It is common for absentee decisions to be made in the name of “good criminal policy” and “minimal state intervention” (ultima ratio), although the conduct attributed to the defendant is unlawful, guilty and formally typical. In so doing, judges apply the modern techniques of interpretative decriminalization provided by dogmatics, not violating the necessary juridical security of the system, whenever human action is minimally damaging or aggressive to the legal goods protected by the Repressive Statute.
I should like to point out that in high-level countries such as Italy, Switzerland and Japan, for example, insignificant property damage, minimal personal injury and even allow me to enter into a controversial area, the small amount of the narcotic substance seized, would transfer the penalization to other areas of Law (such as the Administrative or Civil, for example), unburdening the Judiciary and equally effectively promoting social justice.