A relação entre prisão processual e colaboração premiada: compatibilidade entre a voluntariedade exigida pela lei 12.850/2013 e a situação prisional do colaborador

Abstract

The award-winning collaboration is a criminal bargaining mechanism consisting of a cooperation agreement between prosecution and defense to be used as a means of obtaining other evidence in order to facilitate criminal prosecution. In case the results provided by law result in the agreement, the employee will benefit from the reduction of the penalties consequences to his delinquent conduct. The procedure for the realization of the agreement is provided for by Law 12.850, of 2013. Among the validity requirements of such agreement is the voluntariness, foreseen in art. However, in the Brazilian scenario, there have been agreements of prize-winning collaboration with those investigated or accused who are in custody. The question arises as to the compatibility between the individual's prison situation and his or her willingness to conclude the agreement. In order to answer such questioning, the present study starts with a constitutional interpretation of the Brazilian criminal procedure, as well as with the theory of criminal guaranty. He then studies custody prisons with a focus on custody in order to understand the legitimating requirements of prudential segregation. Finally, it analyzes the mechanism of the award-winning collaboration as a cooperation agreement between prosecution and defense, which must safeguard, as a prerequisite for its validity, the willingness of the collaborator. In this sense, it verifies the possible effects of the prison situation on the psychic freedom of the subject, with the intention of understanding whether or not the agreement signed with an accused prisoner should be valid. In order to demonstrate the pertinence of the exposed problem, three concrete situations are presented regarding the Brazilian legal system, in which the institutes of the awarded collaboration and the preventive prison are related. Lastly, it analyzes the Bill of Law 4,372, dated 2016, which is being processed by the Chamber of Deputies, which intends to amend Law 12.850, in order to verify whether the proposed solution is sufficient to remedy the problems involved in the award-winning collaboration agreements entered into with accused prisoners.