Compensation for Damages in Property Offenses: A Third Path in Line with Contemporary Criminal Policy

Abstract

This study aims to legitimize, in the context of property offenses committed without violence or serious threat, compensation for damages as a third pathway for resolution, capable of avoiding the intervention of the traditional criminal justice model; to this end, it proposes a value-based and material method of interpreting criminal norms, grounded in the concrete assessment of the harmful result, such that criminal law should protect only those legal interests not sufficiently safeguarded by other branches of law and that have been violated in a relevant and intolerable manner; based on theoretical and historical-legal research and considering contemporary criminal policy, the study examines the potential effects of property restitution and its capacity, under certain conditions, to restore legal peace and promote the social reintegration of the offender; in this context, given the anachronisms and asymmetries present in the current legal framework, the article suggests the relativization of the principle of mandatory prosecution as well as a more flexible interpretation of Article 16 of the Brazilian Penal Code, so that compensation for damages, in light of constitutional values, may be recognized as an autonomous mechanism for dispute resolution.