The Penal non-persecution agreement and its application in time to cases prior to its validity

Abstract

The Criminal Non-Persecution Agreement (ANPP) is the newest negotiated criminal justice institute to be established between the Public Ministry and the accused. The ANPP is a mechanism for promoting an extrication criminal policy, since its application extends to most crimes provided for in the Penal Code and extravagant legislation, bringing as punishment the fulfillment of obligations other than deprivation of liberty. However, its application is still not uniform, as the doctrine, as well as the higher courts, has not yet settled the issue of retroactivity of the agreement, as it is a mixed procedural law with a more beneficial character to the accused/defendants. The purpose of this article is to draw an overview of the ANPP institute, establishing the following points: constitutionality, legal nature, application in time and, based on the established premises, to establish the limits of scope of the norm, as well as to give it the fairer and more adequate interpretation having as a parameter the accusatory system and the constitutional norms that govern the matter. The methodology adopted is bibliographic research, using the hypothetical logical-deductive method of study. In this vein, the Criminal Non-Prosecution Agreement is understood as a subjective right of the defendant, arising from a mixed, procedural, and criminal norm, which deals with material rights such as the extinction of punishment, and must, therefore, retroact to reach all previous cases. its validity, except for the res judicata, according to the Federal Constitution of 1988 in its art. 5th item XL.