A efetividade da delação premiada como instrumento de controle do crime organização transnacional
João Pavanelli Neto
DATA DE PUBLICAÇÃO
This paper aims to assess the effectiveness of the procedure cooperation by the defendant, known in Brazil as rewarded delation, as a means to deter and repress the illegal activities carried out by transnational criminal organizations. Given their special characteristics, the criminal organizations have showed a lot of resilience against the institutes and legal mechanisms devised for the control of ordinary crime. Therefore, the law makers, in several countries, have devised a set of measures and procedure tools which target that special form of criminality. However, that ended up to establish an exception criminal law subsystem, with special emphasis on the obtention of practical results, which undermines the individual rights on whose respect lies the essence of a State under the rule of the Law. Taking the American plea bargaining and the British crown witnesses and supergrasses as a model, several countries from the Civil Law system, from Europe and Latin America set up their own similar legal devices, such as the pentiti in Italy, the repentidos in Spain, the Staatzeugen in Germany, and the delação premiada (rewarded delation) in Brazil. Those legal mechanisms have raised some criticism in the countries that adopted them, basically on the grounds that they do not comply with the respective Constitutions. Besides, procedure related issues were raised and the adoption of the institute has not met the expected outcome. In Brazil, it is said that the rewarded delation hurts the jurisdiction principle, the adversary system, the legal defense and the proportionality of penalties principle. Another question relates to the risk imposed to the defendant who decides to collaborate with the authorities, as he/she violates the criminal organization statute by unveiling its secrecy, which is usually punished with death. Therefore, it is vital that a witness security program can be made available along with the rewarded delation. It is the aim of this paper to identify the legal issues related to the subject and to discuss them in order to verify how that tool might be used avoiding constitutional violations, so that the outcome from it could be improved.