NON-PROSECUTION AGREEMENT AND ITS IMPLICATIONS ON THE VIOLATION OF THE ACCUSED'S INDIVIDUAL GUARANTEES IN LIGHT OF A CONFESSION

Abstract

This article analyzes the Non-Prosecution Agreement (ANPP), an institution introduced into the Brazilian legal system by Law No. 13.964/2019 (Anti-Crime Package), inserting Article 28-A into the Code of Criminal Procedure. The central focus of the discussion is the requirement of a formal and detailed confession as a mandatory requirement for the conclusion of the agreement. The authors explore the transition to a negotiated criminal justice system, which seeks procedural speed and the decongestion of the Judiciary in cases of crimes without violence or serious threat and with a minimum sentence of less than 4 years. However, the work highlights a severe constitutional controversy: the imposition of a confession may violate fundamental guarantees of the accused, such as the right to silence and the principle of nemo tenetur se detegere (privilege against self-incrimination), provided for in the Federal Constitution and international treaties. The text presents the doctrinal divergences on the subject. On one hand, it is argued that the Non-Prosecution Agreement (ANPP) is an optional and beneficial path for the defendant. On the other hand, it is argued that conditioning a legal benefit on the renunciation of a fundamental right constitutes a "violation of one right for the granting of another." It is concluded that, although the ANPP is an advance in terms of efficiency, the requirement of confession must be analyzed with caution to prevent the institution from becoming a mechanism for suppressing individual guarantees and causing injustice in the event of breaches of the agreement.