Acordo de não persecução penal: uma discricionariedade do ministério público ou um direito do réu

Abstract

The Criminal Non-Persecution Agreement is an alternative measure of the Brazilian legal system, introduced by Law No. 13,964/2019. It allows the Public Prosecutor's Office to enter into an agreement with the nominee in cases of criminal offenses that meet five requirements: formal confession, absence of a closed case, absence of violence or serious threat, minimum sentence of less than four years and sufficiency for prevention and condemnation of the crime. The ANPP aims to speed up the process, save resources and reduce legal demands. The Agreement involves the actions of the Public Prosecutor's Office, the knowledge judge, the execution judge and the defendant, each actor with an important role. Since its creation, the ANPP has generated debates about whether it is a right of the defendant or a discretion of the Public Prosecutor's Office. The discussion highlights the Agreement's consonance with some constitutional principles, such as the mandatory criminal action, due legal process, contradictory and broad defense, the presumption of innocence and non-self-incrimination. Regarding this discussion, the Superior Courts and the majority doctrine maintain that it is not a subjective right of the defendant, but rather a right of Parquet, as long as it is duly substantiated. This is in line with the adversarial system, where the Judiciary does not interfere in the investigative phase, but can verify the legality and voluntariness of the agreement.