Direito penal negocial e a ampliação dos espaços de consenso como alternativa à sobrecarga do judiciário brasileiro

Abstract

This study aims to analyze the development and consolidation of consensual criminal justice within the Brazilian legal system, in light of the 1988 Federal Constitution and recent legislative innovations. The research begins by examining criminal procedure as a tool that legitimizes the State's punitive power, which must operate in accordance with the accusatorial system and fundamental guarantees of the accused. It addresses key principles such as the mandatory nature of criminal prosecution, legality, and due process of law, contrasting them with the increasing flexibilization influenced by the U.S. plea bargaining model. The study then explores the evolution of negotiated practices in Brazilian criminal procedure, highlighting mechanisms introduced by Law No. 9,099/95 — such as civil damage composition, penal transaction, and conditional suspension of the process — as well as the plea agreement (colaboração premiada) and, more recently, the Non-Prosecution Agreement (Acordo de Não Persecução Penal – ANPP), established by Law No. 13,964/19. The work further investigates how consensual justice serves as a strategy for increasing judicial efficiency and reducing case backlog, while also addressing the risks it poses to procedural safeguards. Ultimately, it offers a critical reflection on the limits and challenges of adopting negotiated solutions in criminal justice, based on legal and doctrinal sources.