The First Panel of Brazil’s Superior Court of Justice began hearing REsp No. 2,126,310, which discusses whether images obtained through Google Earth, combined with other documents, may prove environmental damage without a court-ordered expert examination.
The case arose from a public civil action concerning structures built on an island within an ecological station. The Federal Regional Court of the Second Region held that the evidence was sufficient. It consisted of Google Earth images, photographs, deeds assigning occupancy rights, a building permit, a certificate of occupancy, the absence of environmental licensing, and information produced by ICMBio.
The case was presented in a Migalhas article under the following question: can Google Earth replace expert examination in proving environmental damage?
The question is relevant, but it must be properly framed. The case under review is civil. The images were not used in isolation. They formed part of a broader documentary record, within a regime of strict, joint and several, and propter rem liability — an obligation attached to the property that may be enforced against its current owner or possessor, even if that person did not directly cause the damage.
Any possible criminal-law impact requires caution.
Even if the STJ accepts Google Earth, in that case, as evidence of environmental damage, that conclusion cannot automatically be transferred to prosecutions for deforestation crimes.
A satellite image is not a forensic report
A satellite image has evidentiary value, but it is not the same as an expert examination. It may indicate changes in land cover, removal of vegetation, the opening of roads, construction, or expansion of an occupied area. It may also permit comparisons between different periods. None of this turns the image, by itself, into an examination of the physical evidence of the crime.
A forensic examination requires technical analysis. The expert must identify the source of the data, the date of the images, the methodology used, the limitations of the method, and the conclusions reached. The expert must also relate the findings to the legally relevant elements. Simply filing Google Earth screenshots does not necessarily satisfy those requirements.
Article 158 of the Code of Criminal Procedure provides that, when an offense leaves physical traces, a direct or indirect examination of the evidence is mandatory. Article 167 allows testimonial evidence only when the traces have disappeared. The exception therefore depends on a concrete impossibility of carrying out the examination.
The STJ’s criminal case law applies these rules to offenses against flora.
In AgRg no AgRg no RHC No. 165,610/SC, the Sixth Panel examined a prosecution for the offense under article 38-A of Law No. 9,605/1998. The record contained an inspection report, a notice of violation, a cutting permit, a technical opinion, and other administrative documents. Even so, the STJ held that an expert report was indispensable.
The Court stressed that it was not enough to prove the removal of vegetation. It was necessary to establish that the vegetation was primary or secondary, that it was in an intermediate or advanced stage of regeneration, and that it formed part of the Atlantic Forest Biome.
In AgRg no REsp No. 2,074,383/PR, the Sixth Panel reaffirmed that position. The record included notices of violation, a police report, inspection reports, technical information, a descriptive memorandum, witness statements, and an extrajudicial confession. Because there was no expert report and no justification for its absence, the STJ upheld the rejection of the charges.
These precedents show that administrative documents and visual records do not automatically replace forensic examination.
Articles 38, 38-A and 39 require distinct technical findings
In deforestation offenses, proof of materiality is not limited to identifying a visible change.
Under article 38 of Law No. 9,605/1998, it is necessary to prove that the conduct affected a forest classified as a permanent preservation area, even if still in formation, and that there was destruction, damage, or use contrary to protection rules.
Under article 38-A, the evidence must show that the vegetation was primary or secondary, in an intermediate or advanced stage of regeneration, and part of the Atlantic Forest Biome.
Under article 39, it is necessary to prove that trees were cut in a forest classified as a permanent preservation area and without authorization from the competent authority.
These characteristics are elements of the offenses themselves. They are not collateral facts. It is therefore not enough to show that vegetation existed before and later disappeared. The prosecution must demonstrate that both the vegetation and the area satisfied the statutory requirements of the charged offense.
An image may show a change without necessarily proving the offense
A satellite image may show that a particular area changed. It may also help define the extent of deforestation, indicate the likely period of intervention, and guide inspections.
Standing alone, however, it may not answer the following questions: was the vegetation a forest? Was it located in a permanent preservation area? Did it belong to the Atlantic Forest Biome? Was it primary or secondary? What was its stage of regeneration?
These questions are decisive under articles 38, 38-A and 39 of Law No. 9,605/1998. They concern elements of the offenses that require technical proof even for the criminal case to proceed. Evidence of a generic environmental change is not enough.
Remote sensing may be used as evidence, but it does not replace forensic examination
Recognizing these limits does not mean denying the value of technology.
Remote sensing may be an important tool in environmental investigations and forensic examinations. It may locate deforested areas, compare historical series, measure surfaces, and document changes over time. The images may also serve as the basis for a direct or indirect expert examination.
The expert may analyze the records, verify coordinates, identify the source of the images, compare dates, state the available resolution, and cross-reference the data with official maps, licenses, inspection records, and information about the biome.
Remote sensing, however, does not replace forensic examination.
In criminal proceedings, this distinction must remain clear: a satellite image may be the source, object, or instrument of expert analysis. Its inclusion in the case file does not, by itself, turn it into a forensic report.
This problem has already been examined on this blog in the article The Vicious Cycle of Deforestation Charges Without Technical Evidence. Without expert evidence, the prosecution tends to repeat the wording of articles 38 and 38-A of Law No. 9,605/1998 without proving the facts that allow the conduct to be classified under those offenses.
Conclusion
Even if the STJ, when deciding REsp No. 2,126,310, concludes that Google Earth images formed part of a sufficient evidentiary record to prove environmental damage in that civil case, this will not change their evidentiary value in criminal proceedings.
The images may show changes, guide inspections, and support technical analysis. In civil proceedings, they may form part of a body of evidence sufficient to establish damage and impose a duty to restore the environment.
But under articles 158, 159 and 167 of the Code of Criminal Procedure, the prosecution must prove, in deforestation cases, the technical characteristics of the affected area and vegetation. It must also comply with the requirement of forensic examination when the offense leaves physical traces.
Therefore, even if the STJ accepts satellite images as evidence in the civil case under review, that conclusion does not authorize their isolated use to prove the offenses under articles 38, 38-A and 39 of Law No. 9,605/1998.
Technology may modernize and assist forensic examination. It must never replace it.
