Recurso Em Sentido Estrito Nº 28196720094013802

Penal e processual penal – crime ambiental – art. 34 da lei 9.605/98 – denúncia – rejeição – atipicidade da conduta, que não pressupõe mínima ofensividade ao bem jurídico tutelado – princípio da insignificância – aplicabilidade – recurso em sentido estrito improvido. I – Tanto na doutrina como na jurisprudência, o princípio da insignificância configura causa supra-legal de exclusão da tipicidade, acaso presentes uma das seguintes hipóteses: a) mínima ofensividade da conduta do agente; b) nenhuma periculosidade social da ação; c) reduzidíssimo grau de reprovabilidade do comportamento; d) inexpressividade da lesão jurídica provocada. Precedente do STF: HC 84.412-0/SP, Rel. Min. Celso de Mello, 2ª Turma do STF, unânime, DJU de 19/11/2004. II – A conduta ora em exame – consubstanciada na suposta prática de pesca amadora, com a utilização de uma vara de bambu, com linha, anzol e chumbada, sem a captura de qualquer peixe, e sem notícia de qualquer dano provocado ao meio ambiente – caracteriza a mínima ofensividade da conduta, de forma a atrair a aplicação do princípio da insignificância. III – “Hipótese em que, com os acusados do crime de pesca em local interditado pelo órgão competente, não foi apreendido qualquer espécie de pescado, não havendo notícia de dano provocado ao meio-ambiente, mostrando-se desproporcional a imposição de sanção penal no caso, pois o resultado jurídico, ou seja, a lesão produzida, mostra-se absolutamente irrelevante. Embora a conduta dos pacientes se amolde à tipicidade formal e subjetiva, ausente no caso a tipicidade material, que consiste na relevância penal da conduta e do resultado típicos em face da significância da lesão produzida no bem jurídico tutelado pelo Estado. Ordem concedida para, aplicando-se o princípio da insignificância, trancar a Ação Penal n. 2009.72.00.002143-8, movida em desfavor dos pacientes perante a Vara Federal Ambiental de Florianópolis/SC.” (STJ, HC 143208/SC, Rel. Min. Jorge Mussi, 5ª Turma, unânime, DJe de 14/06/2010) IV – Recurso em Sentido Estrito improvido.

Rel. Des. Assusete Magalhães

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