CONSENSUS IN CRIMINAL PROCEEDINGS AND THE ABBREVIATED PROCEEDING BASED ON ADMISSION OF GUILT: CONSTITUTIONAL (IN)COMPATIBILITY, ADVANTAGES, DISADVANTAGES AND DANGERS

• Main Author: Flávio da Silva Andrade
• Format: Article
• Language: English
• Published: Universidade do Estado do Rio de Janeiro 2020-12-01
• Series: Revista Eletrônica de Direito Processual
• Subjects: criminal procedure; consensus; abbreviated proceeding; confession; constitutional compatibility; advantages; disadvantages and dangers
• Online Access: https://www.e-publicacoes.uerj.br/index.php/redp/article/view/45930/34878

This paper addresses the factor of consensuality in the scope of the criminal process, focusing on the abbreviated proceeding starting with the confession of the accused, foreseen in the Bill of the new Brazilian Code of Criminal Procedure. The constitutional (in)compatibility of this mechanism of abbreviated consensual resolution is analyzed: can such a tool be adopted without violating the constitutional guarantees of the accused? What is the limit for the use of negotiated solutions of this kind? What are the advantages, disadvantages and dangers of adopting an abbreviated proceeding based on the admission of guilt? These questions properly portray the controversies surrounding the subject. It is argued that the instrument in question can be harmonized with the constitutional safeguards of the accused in view of the advantages that it can bring to the State, to the society, to the victims and to the defendants themselves, while drawing attention to its disadvantages and dangers, which demand adequate legal regulation, the fixating of limits to the Prosecution’s participation, a more effective performance of the technical defense, and an actual control of guarantees by the judge. The study conducted is of an exploratory-comprehensive, legaldogmatic nature, giving priority for content analysis.