A expansão da justiça penal negociada no Brasil: uma análise comparativa entre o acordo de não persecução penal e a plea bargaining norte-americana

Abstract

This article aims to analyze the expansion of Brazil’s negotiated justice in criminal matters, focusing on the study of the new non-criminal prosecution agreement, introduced in the Brazilian Criminal Procedure Code through the article 28-A. In a comparative perspective, in order to examine the American Plea Bargaining’s influence in this phenomenon, the investigation shifts to the adversarial system, its origin and characteristics. Therefore, it is possible to verify the incompatibility of the introduction of consensual mechanisms in inquisitorial originated countries, due to the substantial differences between their procedural systems. In spite of this, there’s a large movement towards negociated justice institutes by Civil Law countries, as verified from the Italian (patteggiamento) and German (absprachen) experiences. Brazil, over the past few decades, has followed the same logic. Regarding the recent introduction of the institute, the non-criminal prosecution agreement, despite its huge differences compared to the American Plea Bargaining, it seems reprehensible considering the incompatibility with the brasilian accusatory system principles. This criticisms represents the challenges that must be faced by Law operators to adapt the new institute considering the scope of constitutional guarantees.