A confissão no acordo de não persecução penal: a necessidade de uma adequação constitucional

Abstract

The preoccupation to quickly punish criminals is not present-day exclusive, but dates back to times when sanctioning was applied through private revenge. Immediate and ruthless punishments were more important than penalizing the correct individual in a proportional manner. Criminal Procedural Law arises in order to rationalize the path to the sanction, limiting it. Obviously, the path until the penalty becomes more lengthy and slower. The current scenario is that of a Judiciary Branch loaded with a huge amount of complaints and a negligible number of servers/Judges. From that, propositions of procedural simplification and abbreviation appear, inserted in what is called bargaining and negotiated criminal justice. The speech in the political criminal field targets a rapid and efficient Judiciary Branch. In the Brazilian context, the most recent example of negotiated criminal justice is the implementation of the non-criminal prosecution agreement, introduced by the Law nº 13.964/2019. The most notorious requirement for the celebration of this new negotiating mechanism is the need for a confession of the inquired. Naturally, numerous doctrinal, legal, and social implications emerge from the confession obligatoriness. The problem that originates the present research, therefore, can be summarized by the following question: Is there raison d'être, constitutionality and probative value in the confession signed strictly for the celebration of the non-criminal prosecution agreement? Given this inquiry, the following hypothesis is set: the confession signed strictly for the celebration of the non-criminal prosecution agreement is an innocuous and unconstitutional requirement, with no probative value. The general goal of this study is to investigate the raison d’être, the (un)constitutionality and the (lack of) probative value of the confession sealed exclusively for the celebration of the non-criminal prosecution agreement. Specific goals are as follows: a) to analyze general aspects of the bargaining and of the negotiated criminal justice, as from the fundamentals of their implementation in the political criminal field, with concrete examples of their application and of the related procedural principles; b) to understand the origins of the confession; c) to shortly examine the burden of proof in the due and democratic criminal process of law, and; d) to study the requirement of the signed confession with regards to some contemporary issues of the non-criminal prosecution agreement, such as innocents’ confessions, overcharging and the judge of guarantees. The utilized approach method is the hypothetical-deductive method. As a procedure method, the comparative method is used, in order to contrast the non-criminal prosecution agreement with other criminal negotiating mechanisms. Concerning the research techniques, the indirect documentation is employed through documental and bibliographic research. In the end, the study’s development allowed the confirmation of the central hypothesis that the confession signed strictly for the celebration of the non-criminal prosecution agreement is an innocuous and unconstitutional requirement, without any probative value.