Judicial Review of Voluntariness in the Approval of Criminal Non-Prosecution Agreements

An Empirical Study in Criminal Courts of the São Paulo Metropolitan Area

Abstract

The judicial approval of a criminal non-prosecution agreement (acordo de não persecução penal - ANPP) requires, by statutory mandate (Article 28-A, § 4, of the Brazilian Code of Criminal Procedure), a hearing at which the judge must ascertain the voluntariness of the defendant and the legality of the agreement. This is a central requirement of negotiated criminal justice, since the ANPP entails a confession and the waiver of fundamental rights, so that the defendant must be in a position to make a free and informed choice between standing trial and accepting the consensual resolution. Drawing on a literature review and an observational empirical study conducted in judicial districts of the São Paulo metropolitan area (replicating a methodology previously applied in Goiânia/GO), 131 ANPP approval hearings were observed between June 2025 and March 2026, with standardized data collection and subsequent descriptive analysis. A preliminary finding is that 43% of the criminal courts contacted do not hold hearings at all, relying exclusively on paper-based review in disregard of the statutory requirement. In the hearings actually observed, the voluntariness inquiry was largely confined to reading the terms of the agreement and obtaining a formal confirmation of acceptance from the defendant. Questions regarding prior access to the investigation file, the risks of self-incrimination arising from the required confession, and the existence of external pressure were rare or entirely absent in the sample. All 131 agreements were approved, with no instance of refusal or remand. The findings converge with those of the earlier study, confirming a pattern of insufficient judicial review, and further reveal marked disparities among judicial districts, suggesting that approval practices follow local routines without uniform standards. Accordingly, it is recommended that the statutory obligation to hold a hearing be strengthened, minimum standards for the voluntariness inquiry be established, and a structured question script be developed for judges presiding over ANPP approval hearings.