A (IN)CONSTITUCIONALIDADE DA EXIGÊNCIA DA CONFISSÃO DO INVESTIGADO PARA A FORMALIZAÇÃO DO ACORDO DE NÃO PERSECUÇÃO PENAL: UMA ANÁLISE À LUZ DA CONSTITUIÇÃO FEDERAL DE 1988

Abstract

The main objective of this study is to analyze the issue of the unconstitutionality of requiring confession in the context of the Non-Prosecution Agreement established by Law 13.964/2019. Knowly, this institution represents a novelty in our legal system, with the primary purpose of promoting consensual justice in Brazil, following a similar approach to that adopted previously in the innovations introduced by Law 9.099/95. However, considerable challenges have already arisen regarding the requirement of confession, as a significant portion of Brazilian legal doctrine alleges its unconstitutionality. In this study, we will seek to understand the (un)constitutionality of the confession requirement in the Non-Prosecution Agreement through bibliographic research, especially judicial decisions and legal doctrines. The requirement of confession for the formalization of the Non-Prosecution Agreement should be considered incompatible with the Federal Constitution, as it limits access to the Non-Prosecution Agreement only to defendants who admit to committing the crime, excluding those who must spend years fighting to prove their innocence, while the offender who confesses immediately resolves their procedural situation. Therefore, it is crucial that the Non-Prosecution Agreement be adapted to be in compliance with the Constitution, in order to avoid injustices and violations of constitutional principles.