Direitos Fundamentais da Vítima no Acordo de Não Persecução Penal

Abstract

Since the State assumed a monopoly on the right to punish, the victim has been excluded from resolving the criminal conflict. This scenario began to change with the affirmation of human rights and the consequent consolidation of the contemporary concept of human dignity, having influenced the emergence of the victimological movement and impacting the criminal process. Since then, there has been a slow and gradual repositioning of the victim in traditional or imposed criminal justice. In Brazil, although timidly, normative advances were seen in this regard, especially with the enactment of Laws 9.099/1995, 11.690 and 11.719/2008. More recently, when introducing the criminal non-prosecution agreement (ANPP) into the Brazilian legal system, the legislator was silent on any rights that the victim may have at this pre-procedural stage. In this scenario, the present work aims to study the fundamental rights of the victim of crime in the criminal process, adopting the outline of the criminal non-prosecution agreement (ANPP), introduced in Art. 28-A of the Criminal Procedure Code by Law 13,964/2019 (Anti-Crime Package). The research asks whether it is possible to honor the fundamental rights of crime victims in the ANPP's negotiated criminal justice modality and, if so, in what way, and to what extent, they would be observed. The objective is to analyze the compatibility of victims' fundamental rights with the ANPP, taking into account the principles that govern negotiated criminal justice mechanisms. The topic is current, as it addresses legislation recently incorporated into the legal system that, submitted for consideration in the Superior Courts, has been the subject of divergent interpretations. Furthermore, the ANPP is a very promising procedural instrument and will potentially be chosen by the Public Prosecutor's Office as the main mechanism to be used in resolving criminal conflicts, due to the wide range of crimes covered by it, considered of medium offense, which justifies the usefulness, relevance and pertinence of your study. Finally, we intend to identify the rights of victims, adopting as a paradigm the categories of rights stated in the UN Declaration of Victims (Resolution nº 40/34), adding some adjustments to defend that victims basically have rights to access to justice and active participation; right to compensation for damage; rights to full protection and specialized assistance; and the right to state compensation. With the exception of state compensation, which is not yet regulated in Brazil, access to justice, compensation for damage and full protection are fundamental rights fully compatible with the ANPP and must be observed by the member of the Public Prosecutor's Office in their practices. The methodology employs the deductive research method, with descriptive research; the approach adopts qualitative research; uses bibliographic and documentary research.