Princípio da intervenção mínima e crimes contra a ordem tributária

Abstract

Taking as premise that Brazil is, at least in normative terms, a Democratic and Social State of Law, Criminal Law should be guided by the principle of Minimum Intervention, whereby the legislator, when upon the choice of values to protect with criminal sanctions, must aim exclusively to protect legal values of higher relevance with constitutional reasoning and axiological connection with the Human Dignity. Still, once found certain value worthy of protection in criminal matters, the seriousness and concreteness of the injury should be taken into account, when only a serious and concrete injury to that legal value should be incriminated. Also, the subsidiarity of the criminal weapon implies that criminal law should only be called upon to help when all other means of legal or social control fail or prove themselves to be ineffective. However, in the past centuries it has been experienced a steady expansion of criminal law to areas where its efficiency is doubtful (cost-benefit). In face of the emergence of new areas of interest (new risks) or even in the discredit of the administrative level in traditional areas, the criminal weapon is brought to fix all the wrongs of society, a concept that will ruin the guarantees created throughout the years. As an example of this expansion, one can nominate the crimes contained in the arts. 1 and 2 of the 8.137/90 law and the arts. 168 -A and 337-A, both of the Criminal Code, which seek to protect the formation of the state monetary reserve, the Treasury, criminalizing conducts prejudicial to tax collection (tax fraud). With Brazil being, as said, a Democratic and Social State of Law, the performance in the social sphere, reducing the inequalities inherent in its history, is of paramount importance and cannot be left to the dearth of protection. However, it is not creating new crimes and threatening with more severe penalties, only not to apply them, that this protection will be found. Given the prediction of causes of puniblity extinction and suspention of the state punitive claim by the tax payment or installments, respectively, the symbolic function given to the Criminal Law in the tax area becomes evident. It uses a negative general preventive function as pure psychological coercion, and bully the taxpayers with the severity of punishment and the stigma of a criminal conviction. Thus, given the need of protection; the inefficiency of administrative law and the excess imposed by criminal sanctions, the suggestion here is the creation of a new "Interventional Law", where the penalties do not carry the stigma of criminal sanctions, but, the assurances of those investigated are not as comprehensive as the criminal law