A seletividade da justiça negocial: a inaplicabilidade prática do acordo de não persecução penal no delito de tráfico privilegiado

Abstract

The Acordo de Não Persecução Penal (ANPP), was inserted into the CPP by Law No. 13,964/19, it is a decriminalizing institute that aims to resolve processes that meet certain requirements through negotiation. The incidence of this criminal agreement is broader, as its quantitative parameter is a minimum sentence of less than 4 years, which implies its impact on several crimes, including privileged trafficking. It turns out that its effectiveness is restricted in the crime of reduced trafficking, considering that the recognition of the cause of reduction usually occurs in the sentence or ruling, a moment in which, in theory, the ANPP could not be proposed, even if there were elements from the complaint for this typification. In this sense, the objective of this work is to identify whether in practice there is an obstacle to the implementation of negotiating justice for the crime of privileged trafficking, using as a parameter the STF divergences regarding the procedural framework limiting the proposition of the ANPP - debates made in decisions with the main theme of retroactivity, but the divergence is about the moment of proposing. To achieve this end, the quantitative-qualitative approach and the inductive method are adopted as methodological procedures, through jurisprudential research to demonstrate the legal uncertainty of the diversity of decisions. Based on the above, it can be seen that proposing the ANPP only until the filing of the complaint makes it impossible for countless people to benefit from the aforementioned agreement, which is not beneficial neither for the person who will suffer the consequences of criminal prosecution, nor for the it is for the State, which is overwhelmed with the immense procedural demand. Therefore, it was found that in the case of privileged drug trafficking, preventing the proposal of the agreement after receiving the complaint is only based on the selectivity of the justice system, built through a process of criminalization of the most vulnerable population in the so-called “war the drugs". Based on the above, negotiating justice cannot ignore the social and factual impacts that its application (or not) has, and punitiveness should not be an obstacle to the proposition of decriminalizing institutes.