A expansão do consenso no processo penal a partir da colaboração com a justiça: Estudo a partit da atenução especial da pena como prêmio na legislaçao portuguesa

Abstract

The present research had the objective of analyzing the dangers to the Brazilian Criminal Justice System arising from an expansion of the consensual forms of solution to the criminal conflict that aim at the collaboration with the justice and have, as a prize, inprisonment penalty. We analyze this expansion based on the demands of the International Conventions Against Transnational Organized Crime and Against Corruption, as well as on the history of implementation of this type of consensual process in Brazilian legislation, as from Law No. 9.080/1995, Law No. 9.613/1998 and Law No. 12.529/2011, responsible for the leniency agreement, which all culminated in the current legislative design of the awarded collaboration under Law No. 12.850/2013, from wich we study its procedure and its penal and procedural-penal consequences. Finally, it is possible to analyze the special attenuation of the penalty as a way of rewarding the deffendent’s collaboration according to the Portuguese legislation, marked by the concession, by the judge and during the Hearing of Instruction and Judgment, of a special mitigation or even exemption from penalty to the defendants who effectively assist in the identification or capture of other perpetrators in organized crime. And that, therefore, differs from the Brazilian proposals previously analyzed precisely because it prevents a real business in the penal procedure. By guaranteeing with greater intensity the principles of a constitutional nature, bases for due process of law, such as those of legality and court reserve. In short, this paper seeks to understand both the continuous increase in the importance given to this model of consensus in the criminal process, characterized by a collaboration in which the custodial sentence will be on the negotiating table, usually aimed at large organized crime and, if this consensus is strictly necessary to the evolution of the criminal process, what procedure will better ensure due constitutional legal process. Is it the path chosen by the Brazilian legislator from the award-winning collaboration or, perhaps, the Portuguese based on special attenuation or exemption from punishment?