Pena versus sanção premial: a impossibilidade de concessão de benefícios extralegais ao colaborador premiado

Abstract

This is an explanatory, bibliographical, applied, and qualitative research that, through the dialectical method, investigated the limits applicable to the sanction to be granted to the awarded collaborator, under the terms of the Law of Criminal Organizations. To this end, the traditional criminal sanctions (penalty, security measure and socio-educational measure) were characterized, as well as the rewarding sanctions arising from the award-winning collaboration, the ANPP, the criminal transaction and the conditional suspension of the process. Comparing the concept, the degree of imperativeness, and the purposes of each of these sanctions, it was concluded that the rewarding sanction is a distinct element of the penalty, characterized as the fourth path of Brazilian Criminal Law. Such a distinction, however, does not grant it wide freedom of determination, since the rewarding sanction is an element that influences the criminal penalty, lacking autonomy. In a second line of argument, the scientific, legislative and jurisprudential panorama was analyzed regarding the benefits that can be granted in the awardwinning collaboration. Failures were demonstrated in the following arguments favorable to the extralegality of the clauses: the application of analogy in bonam partem in favor of the collaborator; the logic that “those who can do more can do less”; the understanding according to which the principle of legality is a guarantee of the accused/investigated, and cannot be used to harm them; the position that the existence of a legal microsystem of award-winning collaboration would authorize the granting of benefits provided for in other laws, in addition to Law No. 12,850/2013; and the argument that prohibiting extralegal benefits would make the agreement unattractive to the collaborator. Then, the validity of the following arguments in favor of the strict legality of rewarding benefits was demonstrated: violation of the principle of separation of powers and the accusatory process model; the violation of the principle of isonomy and the increase in the selectivity of the penal system; the fact that the self-regulation of the will by the parties is limited by law; the incompatibility between unrestricted negotiated criminal justice and the Brazilian legal system; the historical interpretation of art. 4, §7, item II, of the Law on Criminal Organizations; and the demonstration of abuses arising from the unrestricted expansion of bargaining power in foreign jurisdictions. Possible measures to promote legal certainty to the institute of award-winning collaboration were also discussed. In the end, it was concluded that granting extra-legal benefits to the award-winning collaborator is prohibited, under the terms of Law No. 12,850/2013.