"Na prática, a teoria é outra": a aplicação do princípio da insignificância aos crimes de furto no Supremo Tribunal Federal e no Tribunal de Justiça da Bahia

Abstract

This paper investigates the application of the principle of insignificance in theft crimes, aiming to understand how the institute has been mobilized by the Federal Supreme Court (STF) and the Bahia Court of Justice (TJ/BA). Interest in the topic stems from the observation of criminal selectivity in Brazil, especially in light of mass incarceration for property crimes, even when committed without violence or serious threat to the person. Therefore, considering that the principle of insignificance is recognized by Brazilian penal doctrine and courts, the question arises: has the concrete analysis of insignificance in theft crimes, in the jurisprudence of the STF and the TJ/BA, contributed to the effective consolidation of the principle and the constitution of a less criminalizing/selective penal system? The research hypothesis is that, by acting from confused and predominantly subjective parameters, jurisprudence compromises the limiting potential of the institute and reinforces the selectivity of the penal system. The overall objective is to examine whether the criteria for defining insignificance in judgments of the STF and the TJ/BA, involving theft cases, are consistent with the purpose of containing punitive power and ensure uniformity in their application. The research is justified by the need to assess the parameters that guide the analysis of the principle of insignificance in concrete cases of theft crimes involving goods of low economic value, as well as by the absence of empirical studies with the scope and systematization developed here. The methodology adopted is empirical, quantitative-qualitative, basic, and exploratory in nature, with an interdisciplinary approach. The technical procedures are bibliographic and documentary in nature, the latter consisting of the analysis of 361 court decisions: 198 issued by the STF (2015–2024) and 163 by the TJ/BA (2022–2024). The choice of STF rulings is justified by their role in establishing the vectors of insignificance (HC 84.412), while the importance of the analysis of the TJ/BA rulings is presented by the local context and the comparison with the guidelines of the Superior Court. The work is divided into four main chapters. The first addresses the theoretical basis of the principle of insignificance, its origin, dogmatic foundations, and relationship with other principles, in addition to presenting distinctions between categories associated with the theme of insignificance and criticisms made of the principle. The second chapter analyzes the jurisprudential contribution to defining the parameters for applying the principle, examining the general vectors established by the STF and the specific criteria highlighted for the analysis of insignificance in theft cases, and problematizing the role of judicial decisions in the constitution of penal selectivity. The third chapter introduces the empirical analysis of the STF and TJ/BA rulings on theft offenses, identifying the criteria effectively used to apply or reject insignificance and presenting an attempt to delimit the content of the vectors outlined in HC 84.412. The fourth chapter delves deeper into the researched judgments, analyzing the content of the decisions in order to identify and describe patterns revealed in the rulings regarding the application of the principle of insignificance, and, ultimately, confirming the research hypothesis, to point out how the application of the principle of insignificance, instead of reducing penal selectivity, contributes to reinforcing it.