A eficácia constitucional do acordo de não persecução penal: análise da (ir)retroatividade do instituto negocial

Abstract

The non-criminal prosecution agreement – ANPP, predicted in the art. 28-A of Code of Criminal Procedure, expanded the application of negotiated criminal justice in Brazil. The discussions about the application of the institute were converted into jurisprudential divergences at Superior Tribunal de Justiça and Supremo Tribunal Federal, especially regarding the retroactive application of the institute. The research had as its main objective check whether ANPP should be applied to process in progress at the time the new law prevails. The main objective was divided into four specific objectives: delimit the constitutional interpretation of the ANPP; describe the retroactivity regime for the norms provided for in the Constitution; analyze the concepts of perfect legal act, subjective law and the immediate application of norms; and analyze STJ and STF judgments on the retroactive application of the ANPP. Aiming at the objectives presented adopted a bibliographical review and case study were carried out using the hypothetical-deductive method. Along these lines, the research identified that the Brazilian criminal process has its own rules for negotiated criminal justice, based on art. 98, I, of Constitution. In the field of retroactivity of mixed criminal procedural rules, that is, that contains material and procedural content, the STF's binding interpretation was identified by retroactivity, in concentrated control of constitutionality, according to art. 5º, XL, of Constitution. The interpretation is congruent, in comparative analysis, with the understanding of the Italian Constitutional Court, when he judged a similar institute. However, the interpretation of the retroactivity of the ANPP was the subject of jurisprudential divergences in the STJ and the STF, that differ from the previous understanding. In terms of final considerations, the research concludes that jurisprudential divergences, which point to a change in understanding about the retroactivity of mixed criminal procedural norms, derive from the interpretation of the ANPP outside the constitutional parameter in the material and procedural aspect.