A (in)aplicabilidade do princípio da insignificância aos crimes cometidos contra a Administração Pública: uma análise do afastamento apriorístico da atipicidade material da conduta ante a fixação de critérios para a sua aplicação

Abstract

The principle of insignificance, which focus on the material atypicality of conduct, is widely accepted in the Brazilian legal system, mainly through jurisprudence. However, there are disagreements as to its extent. In 2017, the Superior Court of Justice issued Precedent n. 599, which prohibits the application of that principle to crimes committed against the Public Administration, since these crimes protect the Administration itself in its patrimonial and, above all, moral meanings. On the other hand, the Federal Supreme Court has judgments in which it verified the criminal insignificance even though the crime was committed against the Public Administration and, in the decisions in which it recognized the inapplicability, it dismissed it based on objective criteria compared with the circumstances of the fact itself. In this sense, the (un)feasibility of previously ruling out the application of the principle of insignificance will be analyzed here when any of the crimes included in Title XI of the Penal Code is committed, even if the application is possible from the point of view of objective criteria of minimal offensive behavior of the agent, lack of social danger of the action, reduced degree of reprobability of the conduct and inexpressiveness of the legal damage caused.