Recurso Em Sentido Estrito 2012.51.03.000850-5

Recurso em sentido estrito. Crime ambiental. Lei nº 9.605/98. Competência territorial. Competência Relativa. Declinatória de competência ex officio. Não ocorrência. I – Não ocorrência de declínio de competência ex officio. II – O declínio de competência ocorreu após provocação dos acusados, não existindo nenhuma razão de ordem processual, material ou prática que os impeça de veicular a matéria antes do juízo de admissibilidade sobre a acusação. III – Regras de fixação de competência. IV – O Estado só exerce soberania plena dentro dos limites de seu mar territorial, do qual a Plataforma Continental e a Zona Econômica Exclusiva não fazem parte, consoante definições trazidas nos artigos 6º e 11 da Lei n. 8.617/93. Dentro dessas duas faixas de mar o Brasil exerce poderes sob limitações impostas pela Convenção de Montego Bay. V- Pautado na convenção, na Lei n. 8.617/93, e nos incisos III, IV e V do art. 109 da CRFB/88, o crime ambiental cometido na zona econômica exclusiva atrai a competência da Justiça Federal. Porém, essa atração não altera a natureza jurídica da zona econômica exclusiva nem da plataforma continental, que não são mar territorial ou território nacional propriamente e, portanto, não permitem uso do regramento convencional de definição de competência territorial pautado nos artigos 5º, §2º do CP e 70 do CPP, reclamando então recurso às noções de extraterritorialidade que, na hipótese, encontrarão enquadramento no art. 7º, II do CP. VI- Os arts. 54, §2º, V, §3º, 55 e 60 da Lei n. 9.605/98, 163 do CP e art. 2º da Lei n. 8.176/91, seguem como regra de competência territorial o lugar onde se verifica o resultado normativo. Informa o MPF que a ação se deu na Zona Econômica Exclusiva, não havendo notícias de que o vazamento de óleo se tenha alastrado para o mar territorial, de modo que não se aplica o art. 70, §2º do CP. VII- A plataforma em que sucederam os fatos tem, segundo precedentes desta Corte, natureza jurídica de embarcação, porém, pelo que informa o próprio MPF, sua bandeira é liberiana, de modo que não tem incidência o art. 89 do CPP. VIII - Recurso ministerial não provido.

Rel. Des. Abel Gomes

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