A aproximação entre o plea bargaining e os métodos de abreviação do processo penal brasileiro: pressupostos mínimos para a efetivação de uma política negocial

Abstract

When we realize that the penal system is on fire, we can only look for emergency measures or solutions that seek to eliminate the disaster or, at least, reduce it. It happens that, not infrequently, the answers presented are shown with a veil that makes up their true face and, consequently, what seems necessary within an emergency perspective, if treated carelessly, can manifest itself as a mechanism of damage to the guarantees. fundamental. In the Brazilian scenario, the high rate of lawsuits suffocates the fragile structures of the system that, without having the strength to contain it, makes slowness and inefficiency flourish. Irritated by the situation, some legal practitioners present as a solution the instruments of abbreviation of the process, which are close to foreign negotiating trends, as is the case of North American plea bargaining. In this perspective, it is proposed: (i) to deepen the study of the aforementioned institute, outlining minimum elements of its understanding (which involves its emergence, its theoretical frameworks, the legal system to which it is inserted and the result of its implementation); (ii) the exposure of Brazilian consensual spaces and the influence of bargaining and the common law tradition in its methods, through the application of comparative law and (iii) the exemplification of the obstacles necessary for the implementation of a purely business policy in Brazil. As a specific objective, it is intended to verify the possibility of coexistence of fundamental guarantees with the agreements on the sentence. Furthermore, the inductive method, the quali-quantitative approach and the documentary and theoretical-bibliographic collection process are applied, followed by the descriptive-analytical method. It is concluded that alternatives based on consensus are unstoppable for any legal system and basic premises are proposed for the improvement of the Brazilian consensual model.