O acordo de não persecução penal: expansão ou redução do sistema penal?

Abstract

The present study deals with the Non-Persecution Penal Agreement (NPPA), an institute that sets up a mandatory adjustment signed between the Public Prosecution and the investigated person, with the aim of avoiding the criminal process. By complying with the requirements established by law, such as confession, the investigated accepts to comply with supposedly milder conditions than the criminal sanction applicable to the confessed crime. In view of the possibility of disrespecting criminal procedural guarantees through the expansion of consensual justice in Brazil, this work is justified in the need to protect the principles of due legal process, the presumption of innocence, the contradictory and the broad defense. In this context, it is sought to analyze whether the NPPA, with the pretext of reducing the penal system and benefiting the investigated, legitimizes and expands the punitive power from the flexibilization of constitutional rules. To understand if the NPPA causes the expansion of the penal system, we conducted a theoretical research, using books, articles, legislation and jurisprudence. The main theoretical framework used was Foucault's (2002b; 2015) studies on the fragmentation of power, disciplinary institutions and changes in punitive power from the 19th century onwards. In addition, empirical data were collected in five NPPA hearings held by prosecutors in Salvador (Appendix A) and through a virtual form sent to all members of the Public Prosecution and the Public Defender that works in criminal courts in Salvador (Appendix B). In development, we treat about the perspectives of criminology and criminal policy, enabling to understand the real objectives of penal system, as well as the relationship between the formal and parallel penal system, the nature of the Brazilian criminal process system and the consequences of the efficiency neoliberal model in the exception state of Brazilian criminal and criminal process system. In sequence, we seek to understand the origin of the NPPA, in addition to treat about “americanization” phenomenon in Brazilian criminal process, with an emphasis on the study of plea bargaining. Finally, the practical consequences of the application of the NPPA are critically assessed and it is concluded that the penal system has increased due to the insertion of the NPPA in the Brazilian legal system.