A (in)constitucionalidade da confissão como requisito para o acordo de não persecução penal (ANPP): análise à luz do princípio nemo denetur se detegere

Abstract

The criminal non-prosecution agreement is an instrument that aims to avoid the initiation of criminal action, offering a faster solution for crimes of medium and low gravity. This agreement is considered an extrajudicial legal transaction entered into between the Public Ministry and the investigated person. In the criminal nonprosecution agreement, the investigated assumes responsibility for the crime and voluntarily undertakes to comply with non-custodial conditions in exchange for the Public Prosecutor's Office's commitment not to initiate criminal proceedings and seek the extinction of punishment, provided that the agreement is fully complied with. Among the objective requirements for its pact arises the requirement of detailed confession, whose constitutionality is the main object of this work. It turns out that, once the ANPP is not complied with, the Public Prosecutor's Office, based on Statement No. 27 of the National Group of Criminal Support Center Coordinators (GNCCRIM), can use its content as a probative element for the filing of future criminal proceedings against the individual. The present study proposes to analyze the doctrinal and jurisprudential approaches about the constitutionality of the mandatory confession as a requirement of the criminal non-prosecution agreement, analyzing the referred requirement in the light of the nemo tenetur se detegere principle, which manifests itself through the right to silence and the right not to self-incrimination. The qualitative documentary research technique is adopted, based on related legislation, opinion, scientific and journalistic articles and on the analysis of national judgments. It appears that the requirement of a detailed confession violates the fundamental rights of the individual, since it represents a crystalline obstacle to the realization of the rights arising from the nemo tenetur se detegere principle, and should, therefore, be declared unconstitutional.