THE (IN)APPLICABILITY OF THE PRINCIPLE OF INSIGNIFICANCE IN CRIMES COMMITTED WITH SPECIFIC RECIDIVISM: AN ANALYSIS IN LIGHT OF THE JURISPRUDENCE OF THE STF AND STJ

Abstract

This article critically analyzes the (in)applicability of the principle of insignificance in crimes committed by a specific recidivist, in light of the jurisprudence of the Supreme Federal Court (STF) and the Superior Court of Justice (STJ). It begins with the understanding of material typicality as a constitutional limit to the state's punitive power and investigates whether specific recidivism can operate as an automatic basis for dismissing material atypicality. The research is basic in nature, with a qualitative approach and deductive method, using bibliographic review and documentary research, examining recurring lines of decision in the Superior Courts, especially in property crimes of small value. It is concluded that specific recidivism cannot, by itself, automatically override the principle of insignificance, although it can be considered as contextual data in concrete analysis, especially in assessing the degree of reprehensibility and social dangerousness, provided that the judicial decision is individualized and duly reasoned. In this context, this study seeks to examine the dogmatic and constitutional foundations that guide the application of the institute, as well as to identify interpretative criteria capable of reconciling the need to contain punitive power with the prevention of repeated offenses. The analysis shows that the adoption of automatic solutions, based exclusively on the agent's criminal history, tends to shift the focus of the evaluation of conduct to the person of the perpetrator, approaching a logic incompatible with the centrality of the act in the theory of crime. Thus, an interpretation is proposed that preserves the concrete analysis of the offensiveness of the conduct, admitting the consideration of recidivism only when it is demonstrated, in a reasoned manner, that it significantly alters the degree of reprehensibility or the social risk of the behavior.