Acordo de não persecução penal: a (in)constitucionalidade da confissão formal como requisito de propositura do instituto

Abstract

In Brazil, with the advent of Law n. 13,964/2019, popularly known as the “Anti-Crime Package”, one of the largest and most impactful legislative reforms of the Criminal Law and Criminal Procedure of the Country, the Criminal Non-Prosecution Agreement was formalized, an instrument of negotiation justice, created to solve less criminal cases. complexes. In fact, this had already been preliminarily introduced under the terms of Resolution n. 181/2017 of the National Council of the Public Ministry. In this sense, the present work intended to evaluate the implementation of Consensual Justice in Brazil, then sought to address the Criminal Non-Prosecution Agreement, as well as its requirements. Notably, with emphasis on the mandatory formal and detailed confession for the conclusion of the Criminal Non-Prosecution Agreement, enshrined in article 28-A of the Code of Criminal Procedure. Praising that this requirement finds an obstacle in the constitutional principles of the right to silence, presumption of innocence, contradictory and ample defense. As well as, the research adopted an approach of the constitutional criminal procedure, using bibliographical research to investigate the reflexes of the criminal justice negotiation in the fundamental guarantees of the individuals. Notably, the present study was focused on the Criminal Non-Prosecution Agreement and its requirements, if these would be in full compliance with the constitutional principles. From then on, we sought to show that this model of consensual resolution of criminal cases presents problems. In view of this, the research reflected on the compatibility of the Criminal Non-Prosecution Agreement, especially with regard to the requirement of formal and circumstantial confession by the investigated person for the formalization and conclusion of the Criminal NonProsecution Agreement. Thus, the bibliographical review showed that the confession tends to assume relevant probative value in case of rescission or non-approval of the agreement. As well as, it was observed that confession as a requirement would violate the principle of the presumption of innocence, while guilt would form even before the initiation of criminal proceedings, in a way that obliges, due to procedural celerity, in the resolution of the criminal dispute , for self-incrimination and waiver of the right to silence. Finally, it was concluded that, in addition to violating the fundamental guarantees of the individual, the confession requirement has no relevance for the realization of the agreement.