Acordo de não persecução penal: uma compreensão de sua racionalidade à luz da teoria do direito como integridade de Ronald Dworkin e do paradigma global da justiça penal negocial

Abstract

In a context of major dysfunctions related to the problem of crime, this research asked: what are the rational criteria for the public prosecutor to establish the object of the agreement of non-criminal prosecution? Are these criteria in line with the global paradigm of criminal law negotiation? It was established, as a general objective, to understand the rationality to achieve the correct answer as to the object of the agreement of non-criminal prosecution by the Public Prosecutor's Office and to identify whether the criteria currently existing are in line with the global paradigm of criminal law negotiation. In the context of the specific objectives, we sought to identify whether the criminal justice negotiation is a trend of the legal systems of European continental matrix and, also, in Brazil, framing the agreement of non-criminal prosecution in this context. Furthermore, it was intended to recognize the juridicity, constitutionality and legality of the criteria used by the prosecution body to enter into the agreement of non-pursuit, ascertaining whether such criteria result in a strong discretion or in a weak sense of the activity of the ministerial interpreting body. investigated the criteria of prosecutorial discretion to fail (or not) to enter into a non prosecution agreement, formalizing charges in court. On the other hand, we sought to identify whether the legal limits of article 28a of the Code of Criminal Procedure, allocated only functional equivalents of penalty, consisted of a dysfunction of the national negotiating system in relation to the global paradigm of expansion of criminal negotiation spaces. It was based on the initial hypothesis that prosecutorial discretion in the agreement of non-criminal prosecution should use rational criteria of discretion in a weak sense, as well as that the legal limitation of the object of the agreement to the functional equivalent of penalty is insufficient to meet the rationality of the global paradigm of criminal justice negotiation. The theory of Law as Integrity by Ronald Dworkin was used as a theoretical framework, in order to unsee the correct answer to such aporias, from the quantitative-qualitative methodology, using data collection and interpretation techniques, with a hybrid approach, deductive and inductive, as well as a literature review procedure, documents and case studies