Unilateral plea bargain as a subjective right

Abstract

The purpose of this paper is to ascertain the legal nature of the awarded collaboration institute and which would be the consequences of considering it a subjective right of the accused. The majority position in the doctrine and jurisprudence has given to it a double nature. Thus, it is said that the institute presents itself both as a procedural legal business as a mean of obtaining evidence, which, in fact, was highlighted in article 3º-A of the Law 12.850, of 2013, introduced by the Law 13.964, of 2019. However, the possibility arises of a triple nature of the awarded collaboration, since it is also the manifestation of the right of defense, specially of self-defense. In this way, the awarded collaboration constitutes a subjective right of the accused, so that, satisfied the requisites and assumptions for its application, it can’t be denied by neither the Prosecution Office nor Police Officer, under penalty of unilateral awarded collaboration be granted by the Judiciary. This raises a new issue, the lack of normative rules on the assumptions of collaboration. It is proposed, therefore, a systematization of the elements there are needed to a positive judgment of admissibility of the collaborative instrument, especially when it comes to unilateral collaboration.