Covid-19 and flooding in rio grande do sul:

reflections on the application of the aggravating circumstance of the public calamity of article 61, item II, item “j”, of the Penal Code, in light of topic 1.185 of the STJ

Abstract

This article investigates the application of aggravating circumstances in crimes committed during public calamities in the context of Brazilian criminal law, with a specific focus on Article 61, item II, item "j", of the Penal Code. This legal provision prescribes that the penalty must be increased for the agent who commits crimes in situations of public calamities such as fire, shipwreck, flood, among others. The relevance of this study is magnified by the recent calamities faced in Brazil, including the COVID-19 pandemic and the floods in Rio Grande do Sul, which tested the limits and applicability of this legal provision. The article addresses theme 1,185 of the Superior Court of Justice (STJ), whose general repercussion was recognized under the rite of repetitive appeals, which seek to establish uniform jurisprudence on the need for a causal link between the criminal act and the state of calamity for the application of the aggravating factor. This debate is crucial to understand whether the simple occurrence of a calamity is enough to aggravate the sentence or whether it is necessary for the crime to have directly exploited the calamity situation. The analysis includes a review of emblematic cases and the legal interpretation that guides the application of Article 61, paragraph "j", aiming to provide a detailed understanding of how these aggravating circumstances are implemented in practice. The study not only clarifies technical aspects of the law, but also discusses its social and ethical implications, highlighting the importance of criminal legislation that effectively protects victims and public order in moments of extreme vulnerability.