A verdade no acordo de não persecução penal: caminhos em busca da determinação fática-procedimental

Abstract

The main objective of this research is understanding whether there is room for truth in the context of the Non-Prosecution Agreement (NPA). To this end, we start from the admission that the truth, or the search for the correct facts of what happened in that particular past time and space, is an arduous mission and always subject to errors caused, in particular, by the limitations inherent in all sciences that seek to reconstruct the past. In the case of criminal proceedings, epistemology discusses even greater difficulties in uncovering the facts, since the search for the truth cannot be an absolute and unlimited end, and there are rules and guarantees to be faithfully observed. These difficulties in defining exactly how the typical event occurred and who committed it are well known in the study of traditional criminal procedure, in which the parties bring conflicting versions to the record, to be resolved by the magistrate, through the evidence, reaching a sentence that reproduces reality as much as possible. It so happens that the Brazilian criminal procedural system, after the entry into force of Law No. 13,964/2019, has come to live with a peculiar rite of prosecution, called a Non-Prosecution Agreement (NPA). This instrument, the result of importing and translating similar institutes from comparative law, derived from consensual justice or penal alternatives, arrived in the country with the intention of inaugurating a new system of criminal policy for crimes considered to be of medium offensive potential. However, it brings with it some problems and points of tension that will be addressed, with scientific and methodological rigor, in this work, by means of a bibliographical review and tests of dogmatic validity, with the intention of shedding light on the following questions: 1) Does the ANPP abandon the perspective of truth in criminal proceedings, admitting agreements based on fictions or "useful lies" and simulated deals? 2) Is the truth of the NPA, even if it exists, constructed without an adversarial process and a full defense? 3) Is the NPA a coercive instrument, since there is no full voluntariness when faced with the state's criminal punitive power? In the end, the aim is to reach a dissertation conclusion, revealing dogmatic paths to circumvent the possible risks to fundamental rights, with new principles governing this business microsystem being pointed out as necessary to guarantee the proper functioning of this punitive method, in particular the principle of fair play by the parties and premature or early adversarial proceedings.