O consenso democrático no processo penal

Abstract

The argument of this thesis concerns a serious problem that worries modern proceduralists: the compatibility of individual procedural guarantees arising from due legal process with society's desire for a speedy and effective process. More specifically, we sought to address this tension within the scope of the creation of so-called consensus spaces, an institute through which the most diverse national States have authorized direct negotiations between the holder of the criminal iniciative and the citizen subjected to persecution. The theme was explored primarily through legal dogmatics, considering that the constitutionality of the application of penalties, including those involving deprivation of liberty, within the scope of such a widespread institute, constitutes the crucial issue that was sought to be resolved through this work. The main arguments (favorable and contrary) to the constitutionality of the consensus spaces, both in Brazil and in the United States – a country in which consensuality in criminal matters finds greater doctrinal and jurisprudential development – were brought up and addressed, with the aim of favoring dialogue and dialectics, typical of science in post-positivism. In this context, examining the decisions reached by the Supreme Court of The United States of America regarding the constitutionality of negotiations in criminal matters in that country proved to be extremely useful. From this comparative study it was possible to extract that most of the criticisms made by Brazilian authors regarding a potential – and perhaps inevitable – expansion of the spaces of national consensus constitutes a mere decontextualized repetition of arguments applicable to the American reality, not the Brazilian one. The observation described above, together with the confrontation of criticisms formulated by sectors of the North American doctrine regarding bargaining, was of unique relevance to the research carried out, as it made it possible to confirm the hypothesis initially formulated, which supported the constitutionality in theory of criminal procedural consensus spaces, including for the purposes of applying custodial sentences. Confirmation of the hypothesis presupposed a break with the traditional tension between “autonomy of the will” and “non-renounceability of due process or freedom”, to conclude that the creation of a constitutionally adequate model of consensus spaces necessarily depends on its structuring in the form of a process (guided by its own rules regime), the element that legitimizes the application of sentences by the Judiciary, regardless of its nature.