APLICAÇÃO DA PENA E COLABORAÇÃO PREMIADA NA AÇÃO PENAL DA TENTATIVA DE GOLPE DE ESTADO (AP 2668/STF)

CONSIDERAÇÕES ACERCA DAS SANÇÕES PREMIAIS ATÍPICAS

Abstract

This article examines the issue of atypical leniency sanctions in plea and cooperation agreements, analyzing the jurisprudential and doctrinal development of this instrument before and after the amendments introduced by Law 13.964/2019 (Anti-Crime Law). The conviction of cooperating defendant Mauro Cesar Barbosa Cid in the criminal case concerning the attempted coup d’état (AP 2668/STF) to a two-year sentence under an open regime, as provided in his agreement, is assessed as a precedent demonstrating that case law has not adopted the interpretation that the legislator eliminated the possibility of granting benefits not expressly provided for by law. Before Law 13.964/2019, the prevailing understanding in the STF favored atypical sanctions, as long as they were more beneficial to the cooperating defendant, a position contested by a significant portion of legal scholars on grounds of violation of the principle of legality and separation of powers. With the the Law 13.964/2019, many jurists concluded that all atypical sanctions had been prohibited. However, a decision issued by the Special Court of the STJ in October 2022 reaffirmed the possibility of granting benefits not expressly provided for in legislation, as long as they are more favorable to the cooperating defendant and do not violate the legal system. The conviction of the cooperating defendant in AP 2668 by the First Panel of the STF, which directly applied the agreed-upon sentence cap, reinforces this understanding. The study concludes that, although the scope of atypical leniency sanctions remains under debate, at least the forms of fixed sentence or sentence cap – provided that legal limits regarding the initial prison regime and requirements for progression are observed – find support in current case law, suggesting a likely future consolidation of this interpretation in the higher courts.