Insignificância no crime de roubo: os limites e as possibilidades para exclusão da tipicidade

Abstract

The principle of insignificance has a doctrinal formulation and appears as a penal institute in 1964, based on the studies of the German criminalist Claus Roxin. The acceptance and application of this principle in the jurisprudence has expanded, reaching more and more types of crimes. However, when it comes to the crime of robbery, the Supreme Court has been resistant to its use, even when the subtracted object has a very small value, considering that robbery is a complex crime that aims to protect not only property, but also the personal integrity of the victim. From this premise, the following question arises: is the fact that robbery is considered a complex crime enough to rule out the use of the principle of insignificance, even if one of the protected legal interests is not affected? The present study starts from the hypothesis that the incrimination without affecting the legal interest violates the precepts contained in the Federal Constitution of 1988. Thus, the objective of this dissertation is to analyze the possibility of applying the principle of insignificance in the crime of robbery, within the framework of a criminal law aimed at the protection of legal interests, based on a constitutional reading of the need for criminal intervention, which is justified when the legal interest protected by the criminal norm suffers such damage that the other branches of law are insufficient for the solution of the dispute, and the notion of legal interest as a way of limiting irrational punitive power. Qualitative research was conducted under the deductive method, which consisted of a literature review, using national and foreign theoretical references on the principle of insignificance, and analysis of the jurisprudence of the Supreme Court on the use of the principle in the crime of robbery. Finally, it was concluded that the way in which the Supreme Court has operationalized the principle of insignificance contradicts the principle's dogmatics and has restricted its scope of incidence, generating unnecessary criminal intervention, which violates the precepts of the democratic state of law.