The mistake of fact (erro de tipo), a fundamental concept in Criminal Law, is characterized by a false perception of reality regarding the constituent elements of the legal offense. Its primary purpose is to exclude intent (mens rea), acting as a ground for excluding subjective typicality, and serving as a cornerstone for assessing criminal liability in light of the finalistic theory of action.
Concept and Foundation
Mistake of fact consists of a lack of knowledge regarding the circumstances that make up the typical offense. Legally, it is situated in the field of culpability and typicality, specifically within the subjective element of the offense (intent). According to Hans Welzel's finalistic theory, adopted by the 1940 Brazilian Penal Code, intent is composed of will and awareness. Thus, if the agent is unaware of an element of the offense, intent is suppressed.
The legal nature of the mistake of fact lies in the exclusion of intent. When the mistake is invincible (unavoidable), both intent and negligence are excluded. When it is vincible (avoidable), intent is excluded, but criminal liability for negligence remains, provided that the penal statute allows for the negligent modality, as prescribed by Article 20 of the Penal Code.
Historical Origin and Evolution
The dogmatics of mistake of fact evolved from the causalist theory to the finalistic one. In the classical system (Liszt-Beling), intent was an element of culpability. With the transition to the finalistic theory, intent was moved to the penal offense itself. This change gave the mistake of fact the function of defining typicality, separating it from the mistake of law (erro de proibição), which remains within the scope of culpability (potential awareness of illegality).
Legal Provision
The institute is provided for in the national legal system through Article 20 of Decree-Law No. 2.848/1940 (Penal Code):
- Art. 20: A mistake regarding a constituent element of the legal offense excludes intent, but allows for punishment for a negligent crime, if provided for by law.
- § 1º: A person is exempt from punishment who, due to a mistake fully justified by the circumstances, assumes a factual situation that, if it existed, would make the action legitimate. (Putative justifications).
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has consolidated the understanding that the mistake of fact must be assessed through the analysis of the specific case, observing the agent's cognitive capacity. The STJ, in several rulings, reinforces that the characterization of a mistake of fact requires proof of the absence of intent regarding the objective elements of the norm.
It is worth noting the recent understanding that, in crimes against honor or crimes of abstract danger, the analysis of the mistake of fact is mitigated by the nature of the norm, but remains applicable when the agent, objectively, has no conditions to identify the illegality of their conduct due to ignorance of the material elements of the action.
Doctrinal Divergences and Related Principles
The main doctrinal divergence lies in the distinction between mistake of fact and mistake of law. While the mistake of fact focuses on the "being" (the fact), the mistake of law focuses on the "ought to be" (the norm). Contemporary doctrine, represented by authors such as Zaffaroni and Bitencourt, emphasizes the need to distinguish "unavoidability" (invincible mistake) from "avoidability" (vincible mistake), the latter being the boundary for negligent punishment.
Contemporary Relevance
In the current legal scenario, the mistake of fact gains relevance in digital offenses and economic crimes, where the complexity of operations can lead the agent to make a mistake regarding the constituent elements of the offense. The correct application of the institute is a safeguard against strict criminal liability, which is prohibited by the principle of culpability (Art. 5, XLV, CF/88), ensuring that only intentional or negligent conduct (when expressly provided for) is subject to state sanction.
Legal and Jurisprudential References
- BRAZIL. Decree-Law No. 2.848, of December 7, 1940. Penal Code.
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- STJ. HC 432.115/SP, Rapporteur: Justice Sebastião Reis Júnior, Sixth Panel, judged in 2018 (consolidated understanding on mistake of fact and exclusion of intent).
- WELZEL, Hans. Derecho Penal Alemán. Editorial Jurídica de Chile, 1970.
- BITENCOURT, Cezar Roberto. Tratado de Direito Penal: Parte Geral. São Paulo: Saraiva.
