THE UNCONSTITUTIONALITY OF CONFESSION IN NON-PROSECUTION AGREEMENTS: AN ANALYSIS IN LIGHT OF THE CONSTITUTIONAL PRINCIPLE OF NON-SELF-INCRIMINATION

Abstract

The article analyzes the unconstitutionality of the requirement of confession as a prerequisite for entering into a Non-Prosecution Agreement (ANPP), introduced by Law No. 13,964/2019 (Anti-Crime Package). Although the institute was designed to streamline the criminal justice system and avoid costly criminal proceedings, the imposition of confession as a condition for the agreement is incompatible with fundamental constitutional guarantees. In particular, it violates the right against self-incrimination, provided for in Article 5, LXIII, of the Federal Constitution, enshrining the principle of nemo tenetur se detegere, which guarantees the individual the right not to produce evidence against himself. The research develops a legal analysis of the legal, doctrinal, and jurisprudential basis of the ANPP, questioning the legitimacy of the confession requirement and its practical impacts on the criminal justice system. It also examines the legal and social effects of this requirement, highlighting the damage to the right to a full defense and due process of law. The study also traces the origin of the institute, from its regulation by resolutions to its legislative formalization, proposing reflections and alternatives to improve the model without violating constitutional guarantees.