ANPP: Applicability in the procedural phase and retroactivity to facts prior to Law 13.964/2019

Abstract

Criminal law and criminal procedure. Writ of habeas corpus. Agreement not to prosecute (art. 28-A of the CPP). Retroactivity until the receipt of the complaint.

Law 13.964/2019, insofar as it establishes the agreement not to prosecute (ANPP), is considered a criminal law of a hybrid nature, admitting the conformation between beneficial criminal retroactivity and tempus regit actum. (2) The ANPP is exhausted in the pre-procedural stage, especially when the consequence of its rejection, non-approval or non-compliance is to inaugurate the stage of offering and reception of the complaint. (3) The reception of the complaint puts an end to the pre-procedural stage, and the acts carried out in accordance with the law in force at that time must be considered valid. Therefore, beneficial criminal retroactivity applies to allow the application of the ANPP to acts prior to Law No. 13.964/2019, as long as the complaint has not been received. (4) In the specific case, at the time of the entry into force of Law No. 13. 964/2019, there was a criminal conviction and its confirmation on appeal, which makes it impossible to restore the criminal prosecution phase already completed in order to admit the ANPP. (5) Interlocutory appeal dismissed, establishing the following thesis: "the agreement not to prosecute (ANPP) applies to events that occurred before Law No. 13.964/2019, as long as the indictment has not been received."

(HC 191464 AgR, Rapporteur: ROBERTO BARROSO, First Chamber, judged on 11/11/2020, DJe-280 DIVULG 25-11-2020 PUBLIC 26-11-2020) (emphasis added - IBCCRIM Register 6280).