BETWEEN LAW AND TOLERANCE: AN ANALYSIS OF THE PRINCIPLE OF INSIGNIFICANCE IN BRAZILIAN CRIMINAL LAW

Abstract

This article addresses the principle of insignificance, a legal institute that limits the intervention of Criminal Law to conduct that effectively causes significant harm to protected legal assets. Originating in European criminal doctrine, especially in Germany, and systematized by jurist Claus Roxin, the principle is based on the Roman concept of minimis non curat praetor, which means “the praetor does not punish the minimum”. In Brazil, despite the lack of express provision in the legislation, the principle has been incorporated by doctrine and jurisprudence as an implicit norm, acting in the protection of fundamental rights and in the rationalization of criminal action. Its application depends on the observance of strict criteria, such as the minimum offensiveness of the conduct, absence of social danger, reduced degree of reprehensibility and insignificance of harm to the legal asset, ensuring proportional criminal intervention in accordance with the principles of fragmentation and minimum intervention. Jurist Eugenio Raúl Zaffaroni conceptualizes the principle as excluding the all-encompassing material typicality, which requires a concrete analysis of the harmfulness of the conduct, going beyond the mere formal adequacy to the criminal type. Brazilian jurisprudence recognizes its application in relevant decisions of the Superior Court of Justice and the Supreme Federal Court, although its use encounters limits and controversies, especially regarding moral reprehensibility, recidivism, protection of relevant legal assets and criteria for assessing insignificance. Finally, it is worth highlighting that the principle of insignificance is an indispensable instrument for the humanization of Criminal Law, preventing the criminalization of irrelevant conduct and promoting proportionality in the application of criminal norms.