This article aims to study the institution of the non-prosecution agreement , established by Law 13.964/19, also called the Anti-Crime Law, which inserted article 28-A into the Code of Criminal Procedure.
Next, we will examine its influence as a tool for criminal policy and the adaptation of the Judiciary's structure to the high number of criminal cases that require its review.
Furthermore, the inclusion of paragraph 3 in Law 8.038/90, which deals with proceedings before the Superior Court of Justice and the Supreme Federal Court, that is, crimes of original jurisdiction, also allows for this institution.
Finally, this text also aims to address the specific treatment of the institute with regard to crimes related to corruption and how it would be applied.
Non-prosecution agreement
First of all, let's talk about the recent Code of Criminal Procedure. Article 28-A states that a non-prosecution agreement is possible when the case is not one for dismissal, the minimum sentence is less than 4 (four) years, the criminal offense was committed without violence or serious threat, and the suspect has confessed to the crime.
First of all, it is important to emphasize that, for the calculation of the minimum sentence, its aggravating and mitigating factors must be considered in the specific case , applying the smallest reduction and the maximum increase to arrive at the sentence for the purposes of a plea bargain.
Furthermore, an agreement will also not be possible when dealing with a crime related to domestic violence, when a plea bargain is applicable, when the accused is a repeat offender or demonstrates habitual criminal conduct, or if in the previous 5 (five) years they have entered into another non-prosecution agreement, plea bargain, or suspension of proceedings, as stipulated in article 28-A, paragraph 2, of the Code of Criminal Procedure.
Now, greater attention is needed when the law speaks of habitual criminal conduct. This is a very broad aspect, and it is necessary to define habitualness. For Nucci, this habitual practice goes beyond a criminal record, as he teaches:
"In other words, the mere verification of a criminal record does not constitute an impediment to a non-prosecution agreement. It is imperative that the criminal record clearly indicates habitual criminal activity, repeated commission of crimes, or the professionalism of the perpetrator. Not everyone with a criminal record meets these three criteria (Article 28-A, paragraph 2, II)."
NUCCI, Guilherme de Souza. Annotated Anti-Crime Package: Law 13.964, of December 24, 2019 – 1st ed. – Rio de Janeiro: Forense, 2020
Beyond the issue of criminal conduct, certain conditions must be met by the accused in order to condemn and prevent crime.
These requirements are outlined in sections I through V of article 28-A of the Code of Criminal Procedure, and they are as follows:
I – To repair the damage or return the item to the victim, except when it is impossible to do so;
II – Voluntarily relinquish assets and rights indicated by the Public Prosecutor's Office as instruments, proceeds, or profits of the crime;
III – to perform community service or service to public entities for a period corresponding to the minimum sentence prescribed for the crime, reduced by one to two-thirds, in a location to be indicated by the execution court, in accordance with article 46 of Decree-Law No. 2.848, of December 7, 1940 (Penal Code)”;
IV – To pay a monetary fine, to be stipulated in accordance with article 45 of Decree-Law No. 2.848, of December 7, 1940 (Penal Code), to a public entity or entity of social interest, to be indicated by the execution court, which preferably has the function of protecting legal assets equal to or similar to those apparently harmed by the crime;
V – To comply, for a specified period, with another condition indicated by the Public Prosecutor's Office, provided that it is proportionate and compatible with the alleged criminal offense.
Again, attention is needed when the law leaves it to the discretion of the Public Prosecutor's Office to indicate another condition, and for an indefinite period , establishing the only parameter that is compatible with the infraction.
There is a noticeable lack of parity of arms; this is not a horizontal negotiation, where on one side is the superior State Party represented by the Public Prosecutor's Office, and on the other is the accused, at risk of prosecution and possible imprisonment.
The agreement will be formalized in writing by the Public Prosecutor's Office , the accused, and the defense attorney, and a hearing will be held to hear from the investigated party in order to verify their willingness and the legality of the agreement.
If the judge deems the agreement to be in order, he will approve it and execution will begin. If he does not deem it appropriate, he will return it to the Public Prosecutor's Office, along with the agreement of the other parties involved, where the proposal may then be amended, an appeal may be filed, or charges may be brought.
Therefore, the victim is informed of the agreement and, if it is breached, the judge will also be notified and charges will be filed. If the agreement is fulfilled, the criminal liability is extinguished.
If the Public Prosecutor's Office refuses to offer the agreement, the accused may request referral to the Attorney General, who will have the final decision on whether to enter into the agreement.
Also, clause IV was added to article 116 of the Penal Code, which stipulates that the statute of limitations will not run until the agreement is fulfilled or rescinded.
Crimes and the new agreement
Although the law establishing the non-prosecution agreement is known as the anti-crime law , the institution discussed here can be considered as such in the sense of a rapid response from the State, through the Judiciary, to the criminal practices of its citizens.
However, on the other hand, it is not part of a harsher approach to combating crime and corruption, as it is not a policy of increasing penalties and incarceration, but rather, on the contrary, a policy where imprisonment is the last resort.
To illustrate, when we talk about corruption in Brazil, we are referring to crimes against public administration described in the penal code and special legislation.
Analyzing the respective criminal offenses described in the penal code, especially the chapter on crimes committed by public officials against the administration, all are eligible for a non-prosecution agreement.
Except for those that fall under the jurisdiction of the special criminal court, adding to this list active corruption as a crime committed by a private individual against the administration.
An interesting point is that Article 92, I, a, b, of the Penal Code provides, provided it is justified in the sentence, for the loss of office, public function or elective mandate , when a custodial sentence of more than one year is imposed for crimes committed with abuse of power or violation of duty to the public administration, or a custodial sentence of more than four years for other crimes.
Complementary Law No. 64, of May 18, 1990 , in its article 1, I, considers ineligible for any office those convicted in a final and unappealable decision or a decision rendered by a collegiate judicial body.
In the examples above, for the public servant to suffer the sanction of losing their position or mandate and/or being ineligible, a court ruling is necessary, which does not occur in a non-prosecution agreement.
It's important to remember that the accused pleaded guilty, unlike what happens in plea bargains and conditional suspension of proceedings. In other words, we could be talking about a public servant or politician who admitted to an act of corruption and will remain in office or run for election.
Conclusion
Throughout the text, we have discussed a new method introduced into our legal system to mitigate the mandatory nature of criminal prosecution.
In this way, it becomes possible for the Public Prosecutor's Office and the accused to enter into a non-prosecution agreement under certain conditions. From the State's perspective, there is greater agility in producing information, evidence, identifying those responsible, and carrying out the respective punishments.
Furthermore, the accused has the option of pleading guilty in exchange for having a potential future prison sentence replaced by a specific and immediate sentence restricting their rights.
Finally, much progress has been made in the fight against corruption; however, much more can still be done , and now with non-prosecution agreements in many corruption-related crimes, prison sentences and loss of public office may not be applicable.
In conclusion, it is undeniable that the criminal policy qualities of the non-prosecution agreement are indisputable, and like all new legislation, it will require improvements from doctrine and jurisprudence.
References
BRAZIL. Penal Code. Decree-Law No. 2.848, of December 7, 1940
BRAZIL. Code of Criminal Procedure. Decree-Law No. 3.689, of October 03, 1941.
BRAZIL. Ineligibility Law. Supplementary Law No. 64, of May 18, 1990
BRAZIL. Procedural rules for the proceedings specified herein, before the Superior Court of Justice and the Supreme Federal Court. Law 8.038/90, of May 28, 1990.
BRAZIL. Anti-Crime Law. Law 13.964/19, of December 24, 2019
NUCCI, Guilherme de Souza. Annotated Anti-Crime Package: Law 13.964, of December 24, 2019 – 1st ed. Rio de Janeiro: Forense, 202
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Author: José Leite Guimarães Junior
Lawyer, specialist in Criminal Procedural Law and master's student in Law, Justice and Development at IDP.
This article was published through the IDP Student Editorial Project.