A (in)compatibilidade do requisito da necessidade e suficiência para a prevenção e reprovação do crime nos acordos de não persecução penal

Abstract

The law 13.964/2019 brought to the Brazilian criminal process a brand new consensual mechanism, named as non-criminal prosecution agreement (“ANPP”). For the execution of the agreement, several objective and subjective requirements were established, among them the conclusion that the non-criminal prosecution agreement is necessary and sufficient to the prevention and reprobation of crime. In this context, based on a bibliographic and legislative research, this paper intends to analyze, from the political-criminal fundamentation optics of the ANPP, whether the mentioned requirement of the necessity and sufficiency to the prevention and reprobation of the crime is compatible with the consensual institute under discussion. Therefore, the criminal process and the ANPP are examined as instruments of criminal policy, the normative content of the necessity and sufficiency requirement of the agreement for the prevention and reprobation of the crime is explored, andthe possible incompatibilities between the investigated requirement and the ANPP are analyzed subsequently. At last, it is concluded that the requirement of necessity and sufficiency, based on the perspective of general prevention of the criminal law, is not compatible with the ANPP. Thus, as a way to overcome the issue, it is recommended the analysis of the consensual mechanism from other approaches.