Entre a justiça penal consensual e a proteção animal: a inaplicabilidade do acordo de não persecução penal aos crimes de maus-tratos contra cães e gatos à luz da Lei Sansão, da senciência animal e da teoria do elo

Abstract

This article analyzes the inapplicability of the non-prosecution agreement to the offense of animal abuse against dogs and cats, as set forth in Article 32, §1-A, of Law No. 9,605/1998, as amended by Law No. 14,064/2020, known as the Sansão Law, in light of the link theory connecting violence against animals and interpersonal violence. The research is grounded on the premise that the consensual instrument, although legitimate within the framework of negotiated criminal justice, encounters material limits arising from the legal requirement of necessity and sufficiency for the reprobation and prevention of crime, as provided in Article 28-A of the Code of Criminal Procedure. In this context, the study examines, from a historical and dogmatic perspective, the evolution of consensual criminal justice in Brazil, with particular attention to the structure and requirements of the non-prosecution agreement. It then analyzes the legislative tightening promoted by the Sansão Law and its procedural consequences, demonstrating that the legislator's criminal policy choice was deliberately aimed at removing the decriminalization mechanisms previously applicable to the conduct. The study further addresses the legal and scientific foundations of animal protection, with emphasis on the concept of sentience, the constitutional recognition of animal dignity under Article 225, §1, VII, of the Federal Constitution of 1988, and the contribution of the link theory to the criminological understanding of animal abuse. The conclusion is that the inapplicability of the non-prosecution agreement stems from two autonomous grounds, namely, the violence inherent to the criminal offense set forth in Article 32, §1-A, of Law No. 9,605/1998, given that Article 28-A of the Code of Criminal Procedure prohibits the agreement for offenses committed with violence without restricting that prohibition to violence against human beings, and the insufficiency of the instrument for the reprobation and prevention of crime, in light of the criminal policy purpose of the Sansão Law, the constitutional mandate prohibiting cruelty, and the criminological foundations of the link theory.