PROPER CRIMINAL NEGOTIATION: PROPER PROCEDURAL TECHNIQUES OF NEGOTIATED CRIMINAL JUSTICE
Name: TIAGO LOSS FERREIRA
Publication date: 28/05/2024
Examining board:
Name |
Role |
|---|---|
| AMÉRICO BEDÊ FREIRE JÚNIOR | Examinador Externo |
| GILBERTO FACHETTI SILVESTRE | Examinador Interno |
| HENRIQUE GRACIANO SUXBERGER | Examinador Externo |
| RICARDO GUEIROS BERNARDES DIAS | Presidente |
Summary: The adoption of consensus techniques in Brazilian criminal law presents itself as a preventive and remedial measure in the face of the overload of criminal cases brought to the Court for analysis, and its consequent inability to resolve in a timely manner the high number of accusations that are presented to it on a daily basis. Faced with this scenario, it is observed, mainly from the American legal experience, that encouraging the use of agreements to resolve criminal cases can be an effective means of enabling the delivery of timely criminal protection. Thus, enthusiasm is established towards criminal negotiation and its proposal for rapid conflict resolution. It turns out that such an impulse should not override the content of due process of law, since, by virtue of an express constitutional provision, all processes taking place in Brazilian territory must comply with the dictates of fair process. There is no valid, perhaps fair, process that violates reasonableness and adequacy. In this sense, this research proposes to make the ideals of fair process compatible with criminal negotiation to build a new concept in the Brazilian legal system: due criminal negotiation. Added to this is the exploration of its content, namely: legislative authorization to negotiate; respect for express criminal constitutional guarantees; existence of just cause to start negotiations; voluntariness in the development of negotiations and monitoring by technical defense; and the role of the magistrate in approving and executing agreements. To this end, methodologically, a critical analysis of specialized national and American legal literature is undertaken, an assessment of the scope and limits of Brazilian consensus instruments (civil composition of damages; criminal transaction; non-criminal prosecution agreement; conditional suspension of the process ; and award-winning collaboration) and North Americans (plea bargaining and its consequences) and the comparison of paradigmatic judgments, with the aim of constructing the content of fair criminal negotiation. In this scenario, the following problem was fixed: what is proper criminal negotiation and what are its appropriate procedural rites. Therefore, in addition to the theoretical approach, this work – attentive to the legislative shortage – aims to assist the daily forensic work of magistrates, prosecutors, attorneys and public defenders who are faced with the possibility of resolving criminal cases through consensus, but are prevented from signing agreements due to procedural difficulties that permeate the modus operandi to be adopted in criminal negotiation (time for execution; permitted conditions; participation of the judge; possibility of subsequent review of the agreed terms; challenge the refusal to offer by sending the records to the reviewing ministerial body; possibility of application in cases of agent competition; etc.). Thus, the present work aims to establish the conceptual contours of fair negotiation and present procedural techniques suitable for its daily use.
