Circulates the news that the robbery, in a clear confusion with the swipe, of cell phone is no longer crime in Brazil (STF decides: Stealing cellular of up to R $ 500 is not crime). Is it really that? Can we steal a cell phone and that conduct will no longer be considered criminal?
To answer this question it is necessary to analyze the decision that supposedly would have considered atypical the conduct of stealing cell, if not see:
PENAL. HABEAS CORPUS. PATIENT CONDEMNED BY CRIME ESTIMATED IN ART. 155, CAPUT, COMBINED WITH ART. 61, IE ART. 65, III, ALL OF THE CRIMINAL CODE. PRINCIPLE OF LOW NOTIFICATION. PREVIOUS CONDEMNATION. POSSESSION OF NON-PERFORMS FOR OWN USE. ART. 16 of Law 6,368 / 1976. APPLICATION. POSSIBILITY. ORDER GRANTED. I – The patient was convicted of the crime described in art. 155, caput, combined with art. 61, I, and art. 65, III, all of the Penal Code, for the theft of a cellular device, valued at R $ 90.00 (ninety reais). II – According to the case-law of this Court, the application of the principle of insignificance, in order to render the action atypical, requires the satisfaction of certain requirements, simultaneously: minimally offensive conduct, degree of reproducibility of behavior and inexpressive legal injury. III – Thus, although it is recorded in the records of a single previous conviction for the practice of the crime of possession of narcotics for own use, foreseen in art. 16 of Law 6,368 / 1976, in the face of an inexpressive offense against the protected legal good and the disproportionality of the application of the criminal law to the concrete case, the atypical conduct must be recognized. Possibility of applying the principle of insignificance. Precedent. IV – Order granted to close the criminal action. (HC 138697 / MG – MINAS GERAIS; Rapporteur: Min. RICARDO LEWANDOWSKI; Judgment: 05/16/2017; Judging Body: Second Class; Publication: DJE-113 DIVULG 29-05-2017 PUBLIC 30-05-2017 (S): FEDERAL PUBLIC DEFENDER, COATOR (A / S) (ES): FEDERAL PUBLIC DEFENDER, FEDERAL GOVERNMENT DEFENDER, SUPERIOR JUSTICE TRIBUNAL)
It appears from the previous transcript that the individual was accused of committing the crime of simple theft (article 155, caput, Penal Code), having subtracted a cellular device valued at R $ 90.00 (ninety reais).
At this point, it is important to differentiate robbery from robbery, since in both criminal types there is the subtraction of something alien from the movable.
Thus, while in theft the subtraction occurs without the use of violence or serious threat, to characterize the robbery it is necessary that the good has been subtracted with violence or serious threat.
Classic example of theft: the individual goes to a supermarket and, while walking in the aisles, subtracts some products, puts them in his bag and leaves the place without paying them.
A classic example of theft: the victim is in his vehicle stopped in traffic, an individual appears and carries out the approach, determining the exit of the victim, under penalty of death.
In the case dealt with in the decision it is a theft, then committed without violence or serious threat.
Understood that, we move on to the principle of insignificance.
Although it is not expressly provided for by law, this is a way of considering atypical conduct, that is, despite the subtraction of the non-movable thing, the conduct is considered irrelevant to Criminal Law and does not deserve its action, mainly because it is (the Criminal Law) the ultima ratio .
The reasoning is that one should not mobilize the costly, delicate and at the same time complex machinery as it is the apparatus of power in which the Judiciary consists in not having what it substantially protects or protects.
This Decision contains 04 requirements for the recognition and application of the principle of insignificance, namely:
(1) the minimally offensive conduct, (2) the absence of social dangerousness of the action, (3) the low degree of reproducibility of the behavior and (4) the inexpressive legal injury.
In this case, what is at stake is not only the kind of good subtracted, but several conditions that lead one to believe in the insignificance of the action.
Thus, in this case, there is no material typicity, which consists in the criminal relevance of the conduct and the typical result in the face of the significance of the injury produced in the legal good protected by the State.
It is necessary to emphasize that it is not simple and easy to recognize the principle of insignificance and that there are several “barriers”, such as the accusation of the accused, the value of the good, the type of crime, among others.
As for the contumácia of the defendant, it has been understood that it is a factor that makes impossible the recognition of the insignificance of the conduct, since it is not an isolated behavior, with a low degree of reprovability.
PENAL. PROCESSUAL CRIMINAL. REGIMENTARY AGREEMENT IN THE AGGREGATION IN SPECIAL REMEDY. THEFT. MINISTERIAL APPEAL INVESTIGATION. INATACED FOUNDATION. INCIDENCE OF SUMMARY N. 283 / STF. PRINCIPLE OF LOW NOTIFICATION. CONTEMPLOY. INAPPLICABILITY. […] II – In line with the jurisprudence of this Court, with the exception of my personal understanding, the conduct examined here is incompatible with the principle of insignificance, since the aggravating factor is a persistent agent (precedent). Related searches (STJ – Case: AgRg at AREsp 841564 SP 2016 / 0019294-0; Judge Body: T5 – THIRD QUARTER; Publication: DJe 01/08/2016; Judgment28 June 2016; Rapporteur: Minister FELIX FISCHER)
Moreover, as to the value of the good for the recognition of the principle of insignificance, there is no consensus:
HABEAS CORPUS. PENAL. THEFT. PRINCIPLE OF LOW NOTIFICATION. NO INCIDENCE. VALUE OF THE SUBTRACTED GOODS. ABSENCE OF INEXPENSIVITY OF INJURY. DISTINCTION BETWEEN INSIGNIFICANT FURTH AND PRIVILEGED FURTH. ORDER DENIED. […] 4. The value of the subtracted goods can not be considered as insignificant in order to characterize the conduct as minimally offensive. The Court of Justice of the State of Minas Gerais pointed out that “the subtracted objects were worth R $ 140.11, and at the time of the facts the current minimum wage was R $ 380.00, considering the amount subtracted from almost half of its amount “. Precedents. (STF – Case: HC 118264 MG, Judge Body: Second Class; Parties: WAGNER TEIXEIRA DE SOUSA, PUBLIC DEFENSE OFFICE OF THE UNION, FEDERAL PUBLIC DEFENDER, SUPERIOR COURT OF JUSTICE Publication: DJE-213 DIVULG 29-10-2014 PUBLIC 30-10-2014 Trial: 5 August 2014 Rapporteur: Mr TEORI ZAVASCKI) 1. In casu, the good was not considered as of small value, because it represents 25% of the value of the minimum wage at the time of the facts. (STJ – HC 110.055 / MG, Min. Marco Aurélio, First Class, DJe of 9/11/2012) In addition, it is also worth noting that the amount of surplus that was tried to be subtracted from the victim – R $ 75.00 – exceeds 10% (ten percent) of the minimum wage at the time of the crime (R $ 678.00 in 2013) , and it can not be considered negligible to authorize the effect of the principle of insignificance. Thus, in the precedent line of this Court, with the exception of my personal understanding, the principle of insignificance with its conduct is incompatible. IV – On the other hand, it is verified that the semi-open regime for beginning of sentence was established, considering that the patient has poor antecedents, even with specific recurrence, not fulfilling the requirement set forth in art. 33, paragraph 2, letter c, of the Penal Code. Habeas corpus not known.
Likewise, the principle of insignificance in qualified thefts (article 155, §4, of the Penal Code) is not usually recognized, but there is no consensus either, and the STF itself has already recognized the impossibility as the possibility:
HABEAS CORPUS. PENAL LAW. QUALIFIED FURT. HIGH VALUE OF RES FURTIVA. OBSTACLE BREAKDOWN. PRINCIPLE OF LOW NOTIFICATION. INAPPLICABILITY. […] 2. The principle of insignificance in a crime of qualified theft committed by means of an obstacle is irrelevant. Precedents. 3. Order denied. (STF – Case: HC 121760 MT; Judge Body: First Class; Parties: JOACILDO PEREIRA DA SILVA, PUBLIC DEFENSE OFFICE OF THE UNION, FEDERAL PUBLIC DEFENDER, SUPERIOR COURT OF JUSTICE Publication: DJE-215 DIVULG 31-10-2014 PUBLIC 03-11-2014, Judgment: October 14, 2014, Rapporteur: Min. ROSA WEBER) PENAL. ORDINARY RESOURCE IN HABEAS CORPUS. FURTO QUALIFIED FOR CONFIDENCE ABUSE – ART. 155, § 4º, II, DO CP. APPLICATION OF THE PRIVILEGED FIGURE OF SECTION 2 OF ART. 155 – PRIMARIETY AND SMALL VALUE OF THING. COMPATIBILITY. PRECEDENTS. 1. The privileged qualified theft contains a harmonious figure with the penal system in which the most favorable interpretation of the criminal penalties is in force, which is why there is compatibility between §§ 2 and 4 of art. 155 of the Penal Code when the defendant is a primary and the resultant of small value, recognizing the privileged theft regardless of the existence of qualifying circumstances. Precedents: HC 96.843, Rapporteur to Minister Ellen Gracie, 2nd Chamber, DJe of 04/24/2009; HC 97.034, Rapporteur Min. Ayres Britto, 1st Class, DJe of 05/07/2010; HC 99.222, Rapporteur Minister Carmen Lúcia, 1st Class, DJe of 089/06/2011; and HC 101.256, Rapporteur Min. Dias Toffoli, 1st Chamber, DJe of 09/09/2011). 2. In casu, the legal requirements demanded by § 2 of art. 155 of the Penal Code for the recognition of privileged theft, there were recognized: the primacy and small value of the thing subtracted (approximately 100 reais), and the judgments of the appeal and the contested decision should not prevail, since, contrary to the jurisprudence of this Court, they removed the application of the privileged figure under the simple ground of its incompatibility with the qualifier of § 4, II, of art. 155 of the Criminal Code. 3. Ordinary appeal provided to reinstate the judgment of the Federal Supreme Court. (STF – ORDINARY REMEDY IN HABEAS CORPUS 115.225 FEDERAL DISTRICT, RECTOR: LUIZ FUX, PACTE (S): ANTONIO ARTAGNAN DE LIMA, SECTOR: PUBLIC ADMINISTRATOR OF THE FEDERAL DISTRICT; ES): GENERAL PUBLIC DEFENDER OF THE FEDERAL DISTRICT AND TERRITORIES; REMEDY (A / S): FEDERAL PUBLIC MINISTRY; PROC. (A / S): ATTORNEY GENERAL OF THE REPUBLIC)
Thus, what happened was not the release of cell phone theft, but the recognition that the specific conduct analyzed by the Supreme Court in the decision was insignificant for criminal law.
Finally, it is clear that this does not mean that the theft of a cell phone or any other good is no longer a criminal offense, but that, depending on the specific case, the principle of insignificance can be recognized, provided that the necessary requirements are met.
A big hug and do not be fooled by biased news.