Transforming environmental criminal law enforcement in Brazil: proportional solutions through negotiated and restorative justice approaches

• Pages: 211-234
• Author: Carlos Frederico Braga da Silva

TRANSFORMING ENVIRONMENTAL CRIMINAL LAW

ENFORCEMENT IN BRAZIL: PROPORTIONAL SOLUTIONS

THROUGH NEGOTIATED AND RESTORATIVE JUSTICE

APPROACHES

Carlos Frederico Braga da Silva1

P.h.D. State Judge and researcher afliated with the Judicial School of the State

Court of Appeals of Minas Gerais, Brazil, and current visiting researcher at the

Basque Institute of Criminology, Spain

1. INTRODUCTION

In this study, we reect on the innovative potential of restorative justice

to transform discursive structures, thereby enhancing the implementation of

negotiated solutions for environmental crimes. Our analysis encompasses the

extrajudicial realm and the institutions within the justice system. The text is

organized into sections that explore this perspective, emphasizing environmental

protection as a crucial mechanism for protecting human rights and reshaping

decision-making and resolution processes aligned with restorative justice. The

chapter outlines the normative and argumentative frameworks designed to

achieve non-punitive and dialogical outcomes, characterized by proportional

sanctions, by thoroughly examining the legal standards supporting such initiatives.

Following the introduction, the second section examines the signicance of

the matter within the Brazilian legal framework, emphasizing how the Federal

Constitution (Brazil, 1988), in alignment with international norms, recognizes

an ecologically balanced environment as a fundamental human right. Practical

examples, including precedents from the Supreme Federal Court and the

interplay between international and domestic standards, offer a comprehensive

overview of the normative foundations that support a political dimension of

collaborative efforts between public institutions and civil society.

1 Corresponding author: Carlos Frederico Braga da Silva at carlosfrebrasilva@gmail.com.

212 CarloS FrederiCo braGa da SilVa

Subsequently, an analysis of the procedures and regulations underpinning

restorative justice is conducted, emphasising their role in facilitating an

alternative but legal framework for resolving environmental conicts. The

approach extends to the interplay between judicial and extrajudicial mechanisms

and the obstacles to institutionalising restorative practices, provided that the

core values of restorative justice remain intact.

The chapter examines Brazil’s legal and administrative frameworks for

criminalizing environmentally harmful conduct. It systematically explores the

interplay between national legislation and consensual models, underscoring the

signicance of penal alternatives and the adoption of non-punitive measures that

emphasize damage reparations and the effective accountability of offenders.

Subsequently, the following section delves into the formal procedures

facilitating the evolution of the conventional criminal justice system. It

highlights the role of agreements and negotiations aimed at reparative justice

and the inclusion of stakeholders in the decision-making process related to

environmental damages. The evaluation extends to applying restorative justice

as a viable alternative to incarceration, thereby offering more expedient and

effective responses to environmental crimes.

This chapter presents an in-depth analysis of integrating restorative justice

principles into criminal justice decision-making. It focuses on proportionality

as a foundational element for legal solutions that strive for more effective

and sustainable restorative outcomes. Thus, restorative justice may be a valid

alternative to traditional punishment, especially in environmental offences. This

approach, rooted in solid principles and inclusive practices, has the potential

to transform and strengthen Environmental Criminal law enforcement.

Consequently, the Brazilian perspective introduced here seeks to enhance the

discussion surrounding innovative applications of restorative methodologies in

environmental protection.

2. THE CONSTITUTIONAL DIMENSION AND THE DUTY OF ALL TO

PROTECT, CONSERVE AND RESTORE THE ENVIRONMENT

This section highlights the legal and political relevance of promoting joint

action between state institutions and civil society to preserve the environment,

guided by the sustainable development concept.2. In this regard, the Brazilian

constitutional framework is a pertinent case study that encapsulates the

2 Sustainable development was dened, in 1987, by the UN (w.d.) under an

intergenerational perspective, as “development that meets the needs of the present without

compromising the ability of future generations to meet their own needs.”