This article addresses the fact that the courts fail to punish certain crimes. This is due to a choice of criminal policy, due to the application of the so-called insignificance or trifle principle, according to which criminal law should not be used for conduct that is totally harmless or incapable of damaging the legal good.
In fact, criminal law should only be used when there is a lesion or threat of injury more relevant to a protected legal asset, such as injury to life, public administration, physical integrity, property, etc.
The principle of insignificance has its roots in Roman law and was introduced in criminal law in 1964 through the work of the German jurist Claus Roxin. This principle was also called the principle of trifle by another German jurist, Klaus Tiedemann.
According to this principle, human conduct, although criminal, considered to be socially inadequate, is now considered atypical (its criminal character being removed) because of the small damage caused to the legal good, which does not represent an important loss, of the legal right protected, or to the integrity of the social order itself.
The code of conduct
Technically, this principle is considered a supra-legal cause excluding materiality, and although it is not supported by law, it is subject to doctrine and jurisprudence, based on the minimum intervention of criminal law.
Today, in Brazil, there is consensus on the possibility of applying the principle of insignificance, however, there is still divergence among Brazilian courts, for which crimes this principle could be applied, as in cases of crimes against the environment.
In order to establish guidelines for its application, the Federal Supreme Court instituted certain requirements, namely: the minimum offense of the agent’s conduct, no social hazard of the action, reduced degree of reprobability of the behavior and the inexpressiveness of the legal injury provoked. (Federal Supreme Court, HC nº 84.412 / SP, Rapporteur Minister Celso de Mello, in DJ 19/11/2004).
Despite these guidelines, there is still resistance from the courts and even from the STF to the application of this principle, when it comes to examining the personal conditions of the criminal, which should not be taken into account. This is evident in cases where recidivism deviates the application of insignificance or trifle.
Thus, Roxin’s contribution to the Criminal Law on the principle of insignificance is unquestionable, and judges should, whenever possible, apply it, so as to reserve criminal law only for the most relevant issues of life in society. In this way, it would avoid the excessive application of penalties, especially those deprived of liberty, in the face of the disaster that is the Brazilian prison system.