A confissão como requisito do acordo de não persecução penal e o princípio da não autoincriminação

Abstract

Negotiated criminal justice, since the advent of Law 9.099/95, has been gaining space in the Brazilian legal system and emerges as an alternative means to the slow and bankrupt traditional criminal justice system, seeking to make the criminal process faster and more efficient. As a corollary to this relentless trend, the non-persecution penal agreement, an extrajudicial juridical transaction, as provided in art. 28-A of the Code of Criminal Procedure, and which brings, in its core, the detailed confession by the investigated as one of the requirements for its celebration. In this sense, the present research, through bibliographic research, aims to investigate to what extent the requirement of confession is translated as a requirement compatible with the principle of non-self-incrimination. To this end, we have analyzed the phenomenon of the expansion of negotiated criminal justice in Brazil and the consequent study of criminal procedural systems, associated with the analysis of the existing incompatibility between the accusatorial system and the criminal agreement and the criticism of the inquisitorial mentality that permeates the Brazilian criminal procedure. In addition, the negotiation tools that exist in our legal system were examined, highlighting the nonprosecution pact, in which occasion its concept, characteristics and the existence of compatibility or not with the accusatorial criminal system were discussed. Next, this research, after a historical overview, turned to the analysis of the principle of non-self-incrimination, studying its origin, concept, scope and its relationship with other criminal principles. And, finally, we sought to analyze, albeit briefly, the history of confession, its characteristics as a means of proof and as a requirement of the agreement not to prosecute, with necessary critical reflections in the light of Critical Criminology of Alessandro Baratta. In this sense, the research revealed that the requirement of confession in the non-prosecution agreement, besides being a strong remnant of the inquisitorial culture present in the dynamics of criminal procedure, configures itself as a requirement incompatible with the principle of non-selfincrimination.