A CONFISSÃO EM SEDE DE ACORDO DE NÃO PERSECUÇÃO PENAL (ANPP): ESTUDO SOBRE SEUS EFEITOS E VALOR PROBATÓRIO

Abstract

This paper analyzes the controversial aspects of the Non-Prosecution Agreement (ANPP), a negotiated instrument formally introduced into the Brazilian legal system by Law No. 13,964/2019 (the "Anti-Crime Package"), with particular focus on its requirement for a formal and detailed confession. The study adopts a qualitative, juridical-comprehensive approach, including a literature review of specialized legal scholarship, legislative analysis, and interpretation of judicial precedents on the subject. The confessional statement required by the agreement has been the subject of intense doctrinal debate. On one hand, it is argued that such a requirement provides legal certainty to the agreement, preventing innocent individuals from being subjected to restrictive measures without an acknowledgment of guilt. On the other hand, critics argue that the mandatory nature of the confession violates fundamental constitutional guarantees, such as the right to remain silent (Article 5, LXIII, of the 1988 Federal Constitution) and the presumption of innocence (Article 5, LVII, CF/88), and may potentially lead to false confessions motivated by the desire to avoid criminal proceedings. Another point of contention—at the core of this research—is the possibility of the prosecution using the confession as evidence in case of noncompliance with the agreement. While CNMP Resolution No. 181/2017 expressly authorizes the use of the confession as an element of probable cause for filing charges, a significant portion of legal scholars argue that this practice violates the principle of nemo tenetur se detegere. In terms of case law, there is currently no binding precedent on the matter, but an emerging trend can be observed against the use of the confessional statement in future criminal proceedings, reinforcing its negotiated and situational nature. The ANPP represents progress in criminal policy by offering swifter solutions for medium-severity offenses. However, its application must balance procedural efficiency with respect for the fundamental rights of the accused. The lack of clear regulation regarding the limits of the confession requirement in non-prosecutorial measures creates legal uncertainty, which calls for resolution—likely to be provided by higher courts. In this regard, Direct Action of Unconstitutionality (ADI) No. 6,304 is currently pending before the Supreme Federal Court (STF), challenging the constitutionality of the confession requirement in the ANPP, and its ruling may reshape the contours of the ANPP within Brazil’s criminal procedural system.