A (in) apilcabilidade do princípio da insignificância aos crimes contra a administração pública

Abstract

The present study has as its subject matter the juridical-social analysis of the application of the principle of insignificance to crimes against the Public Administration. In this vein, it is found that such a precept is not explicitly provided in the Federal Constitution, nor is it in the criminal legislation, being, therefore, in the light of the doctrine and jurisprudence. This time, the insignificance (or misdemeanor) will be the case when minor transgressions occur, lacking social disapproval and being so irrelevant that will not even need the application of a penalty. That is because the Criminal Law preserves its ultima ratio character, being led to act solely when the other branches of the Law are insufficient to repress the criminal conduct. In that respect, the Supreme Court issued four requisites that must be present to an actual case so as to characterize its insignificance. Thus, given that the four requisites are present, the material typicality will be excluded from the transgression and, therefore, the crime. Notwithstanding, the Supreme Courts — STJ and STF — expose divergent standpoints in regards to the applicability of the principle of insignificance to crimes against the Public Administration, whereby the former understands that the malfeasances may offend the administrative morality and, for that reason, it would be impracticable for the State to abdicate its repression, whereas the latter is amply receptive to the recognition of the misdemeanor character of the malfeasances, contingent on the presence of the four requisites elected by that Court. Under the pretense of problematizing, it is to be inquired: would it be legally possible to apply the principle of insignificance to crimes against the Public Administration? By way of conclusion, it is appropriate to investigate upon the requirements that must guide the casuistic analyses. Hence, it is worth indicating that the present scientific research has as its general objective the analysis of the possibility of the application of the principle of insignificance to crimes against the Public Administration. In order to accomplish such an objective, it is used the hypothetico-deductive method, and so is employed the technique of documentary and bibliographical research. In view of the study, it is noticeable that each case must be analyzed separately, so as to come to the conclusion concerning the pertinence or not of the principle of insignificance; the essence of this project is, therefore, on the principle-based and jurisprudential analysis that sustains the object of study