Acordo de não persecução penal: aspectos controvertidos e a sua relevância na perspectiva da justiça consensual

Abstract

Consensual Justice has expanded towards countries whose tradition goes back to Civil Law and Common Law since the 20th century, notably because postmodern society is known by the high complexity of social relations, mainly due to the strength of globalization, as well as the vertiginous increase in litigation and crime. In this context, Consensual Justice presented itself worldwide as an alternative to reduce bureaucracy and generate efficiency to Criminal Justice, especially in relation to criminal felonies of small and medium degree of dangerousness. Brazil accepted this trend in international law and, through Resolution 181/2017, the CNMP – Nacional Public Ministry’s Council – instituted the non-criminal prosecution agreement that, shortly thereafter, entered the national legal system through Law nº 13.964 / 2019. As it is a new institute, the present work has the general scope of contributing to the study of the Non-criminal prosecution agreement, poiting to the main controversial issues on the subject, as well as addressing its contribution from the perspective of consensual justice. It has the specific objectives of outlining the concept of consensual justice; describe it in the United States – which has the Common Law tradition and in Italy whose origins go back to Civil Law system; understand the evolution of consensual justice in Brazil; unravel the emergence of CNMP (Nacional Public Ministry’s Council) Resolution 181/2017 and its constitutionality; conceptualize the NPA (Non-prosecution Agreement) and critically investigate the controversial points of that institute. This is an exploratory, descriptive and qualitative research and uses the method of dialectical approach. As a result, it was concluded that the NPA is an effective instrument and contributes to the consolidation and expansion of consensual justice in the Brazilian legal system, by encouraging debate, the opposing of ideas and the resolution of conflicts by the parties themselves through an extrajudicial procedure. It was also found that the implementation of the NPA prioritized criminal procedure and human resources, as well as financial resources from the Public Ministry, for the most serious crimes. Despite the importance of the NPA for the consolidation of spaces of consensus, it was concluded that there are four main controversies, namely: its legal nature; the obligation to confess the existence of plea bargaining; retroactivity or nonretroactivity as to the intertemporal aspects of the standard and, finally, the competence of the executions court to execute and monitor compliance with the NPA conditions. Finally, it was found that the contested points promptly lack elucidation, given the different dissonant voices in both jurisprudence and doctrine, end up generating legal uncertainty regarding the applicability of the instrument so necessary to consensual justice.