A delação premiada face aos seus limites no direito brasileiro : considerações acerca da lei no. 13.964/2019 e a questão da legitimidade para propositura do acordo

Abstract

Turn State’s Evidence is a way to taking evidence and procedural legal business, according to which the investigated or accused will receive legally stipulated criminal benefits in exchange for providing information relevant to the outcome of the process. Present in Brazil since the Philippine Ordinances, when it was known as "crime of lèse-majesté", the institute has been gaining prominence in the country after the outbreak of the "Car Wash Operation", due to the numerous prize agreements made in its course. Disseminated in the Brazilian legal system through a wide range of special criminal legislation, the agreement, which is still the target of much criticism in both doctrine and jurisprudence, has been polished and consolidated over time, which became evident with the changes offered by Law number. 13.964/2019, Anti-Crime Package, the most recent piece of legislation to address the subject. With the notoriety also emerge the problems, of which deserves to highlight the controversy regarding the legitimacy of the Police Chief (the same way it is attributed to the Public Prosecutor's) to enter into the plea bargain, which gave rise to the filing of Unconstitutionality Direct Action number 5508, judged in 2018 by the Federal Supreme Court, resolving the issue by confirming the legal provision that assigns both the Police Chief, as well as the Public Prosecutor the prerogative to perform the agreement. However, with the new law, questions that had been solved have resurfaced, mainly due to the definition that has been given to the judicial nature of this agreement. In that way, an analysis of the "State’s Evidence” and its application in Brazilian law will be made, emphasizing the novelties brought by the anti-crime package and the issue of legitimacy to conduct the negotiations of the agreement, to demonstrate that the expansion of the judicial nature of the state’s evidence in no way affects the previous decision of the Court in the trial of Unconstitutionality Direct Action. For this, a qualitative approach was taken, based on bibliographical and documentary research methodologies, drawn from books, scientific articles, dissertations, and news, in addition to the study of legislation and court rulings.