It is no longer today that we see growing thinking about environmental issues. Laws, international treaties, compliance programs, and world-class social movements demonstrate that this concern has long since ceased to be of individual concern, but of all mankind, much in the wake of the environmentalist movements of eighteenth-century England.
Until the 1988 Federal Constitution was enforced, criminal liability of the legal person was not viable, since the principle societas dellinquere non potest reigned, that is, “society can not commit crimes”. On the other hand, at the same time it was already evident the need to eradicate both crimes committed against the economic order and those offensive to the environment.
It was with this intention that the constitutional legislator gave rise to the extension of the protection of Criminal Law, allowing the criminal responsibility of legal entities. The ” Theory of Reality”, or ” Theory of Reality”, was adopted in 1988, which includes the juridical person as an organism endowed with will: it is the recognition of corporate delinquency.
It was in this same spirit that Law 9605/98 regulated the art. 225 of CF / 88, providing for penal and administrative sanctions derived from conduct that is harmful to the environment. Its text clarifies the purpose of reparation of environmental damage, combining the preventive character with the repressive by the imposition of fines, allowing legal persons to appear in the passive pole in persecutio criminis.
Undoubtedly, this is a great step forward to curb the damage to the environment. Innovation, however, has stimulated debates on the subject: if on the one hand jurists understand it possible only when tied to the conduct of a physical entity, there are those who support the very inability of a moral entity to sit in the dock, even for the difficulty of individualized conduct in crimes of collective authorship.
The fact is that the accountability of legal entities has long been a reality. However, the well-defined rules of the law on environmental crimes, especially double imputation, must be respected as an indispensable condition for the accountability of legal entities. Such a theory prevents the imputation of environmental crime exclusively to the juridical person, after all any illegal act always presupposes the action of a physical person.
This necessity seems obvious (and for us, it is), but unfortunately the STJ has been consolidating diverse position, after much demanding double penal assignment. Now, companies and organizations, when committing environmental crimes, may appear at the poles of criminal proceedings, without any indictment against the individuals who compose them.
We disagree with this understanding, which is nothing more than the antithesis of theories of criminal law. We pray for this to change, so that Criminal Law will again apply to what it was created for: people of flesh and blood.