A ação penal (privada) subsidiária nos crimes contra a natureza: reflexões sobre a possibilidade da legitimidade extraordinária coletiva penal e sua operacionalidade sistêmica.

Abstract

This research aims to examine the practical instrumentality of prosecution (private) subsidiary in crimes against nature, because it is a constitutional guarantee that enables external control of public prosecution. The process, including criminal, is one of the foundations of the structure of the penal social control, which has the important mission to functioning as a dialectical field that aims to correct application of criminal law, the proportionality of the sanctions, and, above all, verification of effective injury and legitimacy of the legal interest protected by the law, especially those indivisible and that refer to indeterminate subjects, such as the environmental legal interest. Therefore, the adequacy of the criminal procedure institutes will be examined in particular the extraordinary legitimation by the prosecution (private) subsidiary in crimes against nature. Under this approach, the structural bases will be analyzed to guide the relationship between the citizen and the state in the formation of the penal social control, by studying the social factors that imposed to overcome the individualistic conception of the legal-criminal fine for a criminal protection of property legal supraindividualista, which resulted in changes in the procedural sphere, especially regarding the entitlement to exercise the right of action. Then, in order to delimit the object of study of this work will address the issue of legal protection of the environment by analyzing the formation of the environmental legal interest and recognition of the criminal offense by the law of environmental crimes. At the end, after a theoretical study on the right of action, the instrumentality of access to justice by the extraordinary prosecution subsidiary legitimacy will be discussed, in order to verify the feasibility of the replacement procedure on environmental crimes; possible collective extraordinary standing to their promotion; and its systemic operation.