A Aplicação dos Institutos de Justiça Criminal Consensual e o Sistema Penal Acusatório

Abstract

This study aims to analyse the compatibility of the Brazilian instruments of consensual criminal justice when compared to the guaranteeing principles inherent to the accusatory system. It also aims to analyse the relationship between those principles and the fundamental rights and guarantees provisioned in the Constitution. With that end, it was performed a bibliographic research on books, papers, and scientific studies addressing the criminal procedural area of the law, specifically those related to the consensus in the criminal procedure, the guaranteeing principles, and those relative to the systems through which criminal procedures are applied. The analysis specifically encompasses the tools of consensual justice in Brazilian criminal procedural law and how the instruments, that allow an agreement between the defendant and the prosecution to be reached, consist in a way to resolve the criminal conflict in which either the judicial procedure is shortened, or the application of the procedural phase is completely excluded. These institutes are consequently extremely beneficial for the judiciary, due to the cases being processed much faster. A settlement can be reached through a simple conciliation hearing, achieving thereby considerable procedural economy. In light of these aspects, the tendency to adopt consensus as a means of settlement for cases is increasing. It is already present in several law provisions, as well as in bills still passing through the National Congress’ legislative proceedings. On the other hand, the adversarial (accusatory) system’s traits are related to those established by the principle of due process, by the contradictory and full defence principles, the principle of parity of arms, the presumption of innocence, the obligation to prosecute and the need to have a procedure principle. This is due to the system being based on a process of parties, in which these parties should be equal and heard by an impartial magistrate who offers them an answer. The consensus tools directly seek to avoid the procedure in order to achieve promptness and economy, by doing so they aim to unburden the judiciary, but this method of swiftly processing cases completely neglects the attention that should be given to the principles that protect the defendants’ rights and guarantees, such as the clear violation of the presumption of innocence that comes with the application of penalty without a due process.