ACORDO DE NÃO PERSECUÇÃO PENAL: ANÁLISE ACERCA DO MOMENTO PROCEDIMENTAL ADEQUADO À PROPOSITURA E DA RETROATIVIDADE DO NEGÓCIO JURÍDICO CONSENSUAL ESTABELECIDO PELA LEI Nº 13.964/19

Abstract

The aim of this work is to elucidate the appropriate time for the Acordo de Não Persecução Penal (ANPP) proposal and to clarify up to when it apllies the retroactive effectiveness of such institute on ongoing processes as soon as emerged the Law nº. 13.964/19, the legal diploma that introduced the referred kind of agreed penal resolution into the national legal system. In order to answer this research’s imbroglio, reason of concerns in doctrinaire, academic, jurisprudential and prosecution sectors, it is sought to start from the exact understanding of the negotiating tool now analyzed. At first, the study deepens about similar mechanisms to the ANPP, which are typical from a criminal justice based on consensual and decriminalization practises that were conceived, long ago, in foreign countries such as Germany, Italy and the United States of America. Next, it is discussed the harmony between the constitutional, criminal and procedural criminal principles that guide the national system and the non-prosecution pact established in art. 28-A of the Criminal Procedure Code (CPP). Following, the pragmatic nuances of the agreement are examined, considering its nature of extra-procedural legal contract and, simultaneously, as an instrument of criminal policy, as well as the requirements, conditions and assumptions of the aforementioned device are observed. Still, trailing a conceptual and empirical view, the ANPP is distinguished from other Brazilian negotiating institutes sedimented in the criminal field and, subsequently, the advantages and precautions arising from the application of the Acordo de Não Persecução Penal are evidenced. Finally, the negotiation proposal during the custody hearing is debated, inferring, moreover, the propitious moment for the negotiated pact celebration, as well as the exceptional hypotheses that admit this consensual practise. In conclusion, in the light of multiple divergent lines of thought and drawing a link between all the other discussions set throughout the work, it concludes on the retroactivity of the non-prosecutorial tool.