A constitucionalidade da confissão como pré-requisito para firmar o acordo de não persecução penal : possível conciliação entre a admissão de culpa e a proteção das garantias fundamentais do acusado

Abstract

The law no. 13.964/2019 inserted in the Code of Criminal Procedure, in it’s article 28- A, the institute of non-criminal prosecution agreement. It’s a consensual justice mechanism, which main goal is to find an alternative solution for those cases considered by the Public Prosecutor's Office, as the holder of the criminal action, as less severe. Among the requirements for its offering, is mandatory the formal and detailed confession, an exigency that caused great controversy within the juridical surroundings, due to the supposed violation of the right to not self-incriminate and the right to remain in silence. Therefore, this academic production leading end is to analyze, through bibliographic review of authors in the field of consensual justice, wheter the confession’s requirement is compatible with the current constitutional order, as well as if it is possible to guarantee the defendant’s basic rights. It was also measured wheter such requirement would be considered a form of coercion regarding the defendant. In this context, it was concluded that the confession’s requirement is compatible with the Federal Constitution, and that it was not possible to indicate a coercitive feature in such exigency, as it preserves, in its essential and non-negotiable aspects, the constitutional rights of the accused.