A (in)constitucionalidade da confissão como requisito no acordo de não persecução penal.

Abstract

The present monographic work focuses on the potential unconstitutionality of requiring a formal and detailed confession as a condition for entering into a Non-Prosecution Agreement. This decriminalizing instrument was introduced by Law 13,964/2019 (the "Anti-Crime Package") and is provided for in Article 28-A of the Code of Criminal Procedure. The objective of this monograph is to analyze the historical aspects of the introduction of this benefit into the Brazilian legal system in light of the 1988 Federal Constitution, legal doctrine, and jurisprudence, verifying its compatibility with the core fundamental guarantees of the investigated party. Consequently, the central problem addressed in this study consists of examining how such a requirement can coexist with constitutional guarantees without allowing plea bargaining to turn into an instrument of state coercion or an undue waiver of fundamental rights. To this end, the deductive method is employed, based on bibliographic research and a philosophical foundation, subsequently encompassing an analysis of doctrine, legislation, and precedents from the Supreme Federal Court (STF) and the Superior Court of Justice (STJ). Finally, it is concluded that the mandatory nature of the confession creates tension with constitutional principles, demanding a critical interpretation regarding the limits of negotiated criminal justice within a Democratic State of Law. Thus, it is found that while the Non-Prosecution Agreement represents a relevant tool for rationalizing criminal prosecution and expanding consensual justice mechanisms, the requirement of a confession as a condition for its celebration raises significant constitutional questions—particularly regarding the preservation of the investigated party's fundamental guarantees and the need to interpret the instrument in accordance with the structural principles of democratic criminal procedure.