Acuerdo de No Persecución Penal y proporcionalidad de las condiciones impuestas: análisis de acuerdos en el estado de São Paulo en 2025

Resumen

The criminal non-prosecution agreement (acordo de não persecução penal - ANPP), set forth in Article 28-A of the Brazilian Code of Criminal Procedure, is part of the expansion of negotiated criminal justice in Brazil and allows criminal prosecution to be avoided in exchange for compliance with conditions agreed between the Public Prosecutor's Office and the accused, such as pecuniary payment, community service, and reparation to the victim. However, the legislation does not establish sufficient and objective criteria for the selection and quantification of these measures, which may compromise proportionality and equal treatment. Accordingly, this article examines which conditions are actually being imposed and to what extent, whether there is an association between the seriousness of the offense and the severity of the conditions, and what relationships emerge among the conditions themselves. To this end, a documentary empirical analysis was conducted on 556 ANPPs in the state of São Paulo, with procedural dismissal in April 2025, identified through the ESAJ portal of the Court of Justice of the State of São Paulo (TJSP) and recorded in a structured questionnaire, followed by descriptive statistics and tests of association between the type of offense and the conditions. The results show a predominance of pecuniary payment (87.4% of agreements), almost always in low amounts (up to one minimum wage), followed by community service (37.4%), reparation to the victim (21.6%), and generic conditions (15.8%). On the one hand, no association was found between the abstract minimum sentence and the amount of the pecuniary payment; on the other hand, the duration of community service tracks the seriousness of the offense, in accordance with Article 28-A, III, of the Code of Criminal Procedure. A substitutive pattern was also observed between pecuniary payment and community service, as well as a cumulative relationship between reparation and pecuniary payment, in addition to a low incidence of reparation even in offenses with an identifiable victim. The findings suggest considerable standardization of the conditions and the fragility of proportionality criteria in setting the pecuniary payment. It is therefore recommended to strengthen regulations defining criteria for the selection and the amount of the conditions, as well as to reinforce control mechanisms, such as allowing an internal appeal within the Public Prosecutor's Office and habeas corpus to review abusive clauses. Finally, further research is suggested to analyze the other factors that influence the definition of ANPP clauses in negotiation practice.