A ampliação dos espaços de consenso no processo penal

Abstract

This paper deals with the expansion of spaces of consensus in criminal procedure. Firstly, the consensus view of crime is outlined, indicating the categories upon which criminal consensus is based, and pointing out the directions it has taken in contemporary criminal policy. Next, the Habermasian conception of consensus directed to the criminal procedure is explained, seeking to demonstrate how the theory of communicative action can guide the formation of a valid consensus in the criminal justice context. Thereafter, the topic of consensual criminal justice is addressed, dealing with its concept, emergence factors, legitimating foundations, mechanisms, controversies and criticisms. Then, the paradigmatic North American model of negotiated criminal justice is discussed, as well as the instruments of consensual resolution of criminal proceedings in Portugal and Brazil. Finally, it discusses the trending expansion of spaces of consensus in the Brazilian criminal proceedings, drawing attention to the summary proceeding from confession, provided for in the draft of the new Criminal Procedure Code (article 283 of the Federal Senate Bill No. 156/2009), and to the analysis of its constitutional compatibility. The theoretical discussion involves questioning the (non)renunciability of fundamental rights in the democratic state based and, in this aspect, we draw upon the doctrine of the Portuguese constitutionalist Jorge Reis Novais. Support is provided to the defendant’s renunciability to his rights to presumption of innocence, contradictory (adversarial principle) and production of evidence. The constitutionality of the aforementioned summary proceeding, which allows, through defensive counseling and judicial control, the early application of punishment based on an agreement between the parties (accuser and accused), is herein defended. The advantages, disadvantages and dangers inherent to the use of this instrument of consensual criminal justice are pointed out, as well as suggestions made for improving the normative discipline contained in the bill, in order to better protect the rights of the criminal defendant and to prevent doubts or controversies regarding the operationalization of the doctrine.