Abstract

The right to silence, an essential element of the democratic rule of law, faces challenges in the context of plea bargaining, regulated by Law No. 12.850/2013. This study investigates how this procedural mechanism can compromise constitutional principles such as the right to silence, a broad defense and due process of law, generating legal uncertainty. The growing use of plea bargaining in the fight against organized crime highlights the need to assess its limits and impacts, especially with regard to the waiver of the right not to self-incrimination. This paper aims to analyze the compatibility of plea bargains with fundamental rights and proposes a reflection on the voluntariness and reliability of plea bargains, with a view to avoiding abuses. The research adopts a bibliographical approach, examining legislative and doctrinal developments, as well as analyzing gaps and legal tensions associated with this institute. The specific objectives include a historical contextualization of Brazil, the construction of a legislative timeline and an analysis of the practical and legal impacts of plea bargaining, with an emphasis on the unconstitutionality of waiving the right to silence. It is hypothesized that imposing this waiver could compromise due process and the integrity of the criminal justice system. The conclusion is that there is a need to establish strict criteria for the approval of agreements, ensuring that the waiver of the right to silence is unconstitutional.

Keywords

• Plea bargaining, Right to silence, Legal uncertainty, Fundamental rights, Due process of law.

License

This work is licensed under a Creative Commons Attribution 4.0 International License.