The right moment for the ANPP: why the defense must be able to speak out before responding to the accusation

For no other reason, as Aury Lopes Jr. points out, it is a “powerful instrument of criminal procedural negotiation that requires a different stance on the part of the judicial actors, previously forged in confrontation, who now need to open up to a negotiation logic”[1]. The author's warning reveals that the paradigm transition is not exhausted in the legislative provision of the agreement, but calls for a transformation in the very mentality of the procedural subjects, without which the institute would be emptied of its decriminalizing function.

This requirement for cultural repositioning, however, does not occur automatically, with the mere promulgation of the law. Rites, deadlines and categories built over decades under the logic of confrontation continue to shape, in forensic praxis, the way in which the consensual institute itself is processed. The result is a kind of anachronistic survival of the old paradigm within the structure of the new paradigm.

This resistance manifests itself with exemplary clarity at the moment when the defense is required to debate the appropriateness of the agreement: if the negotiation is not consummated before the complaint is filed, the defense is pushed to the phase of responding to the accusation (arts. 396 and 396-A of the CPP), a moment, according to some, appropriate to raise the matter.

It is, as will be seen, precisely at this point that the current system demands some reflection.

What the law provides and how the practice of some has behaved

The controversy does not arise from a defect in the legal text, but from a mistake in sequencing, or an excessively restrictive interpretation, that practice imposes. Article 28-A, § 14, of the Code of Criminal Procedure is express in establishing that, if the proposed agreement is refused by the Public Prosecutor's Office, the person under investigation may request the referral of the case to the higher review body, in accordance with article 28. Within the scope of the Federal Public Prosecutor's Office, this body is the Coordination and Review Chamber; in the state Public Ministry, the Attorney General of Justice.

Interpreted teleologically, § 14 presupposes a complete incidental procedure, with request, first-degree manifestation, eventual insurgency and re-examination by a higher court, a sequence that, by its very nature, demands its own time and procedural space. While the controversy over the appropriateness of the ANPP is pending, at the administrative level, the criminal process is not even ongoing, since the possibility of a consensual resolution of the accusatory claim suspends, even if provisionally, the interest in acting, a condition of the criminal action.

The problem, therefore, is not in the normative provision, but in the procedural moment in which the defense is forced to exercise these powers. Forcing the thesis about the appropriateness of the agreement to be deduced within the response to the accusation means mitigating the reach of consensus in the criminal process, imposing a disproportionate burden on the technical defense, harming the balanced exercise of the adversary system and breaking – even further – the parity of arms that must assist the accusation and the technical defense.

Why is the response to the accusation the inappropriate procedural vehicle?

Some relevant reasons support the impropriety in the cogent use of the response to the accusation as a suitable venue for consensual debate. There are three orders of foundations, all convergent, as explained below.

The first is systematic. In fact, the debate about the agreement is, by nature, prior to and detrimental to the investigation, because discussing whether the case involves a consensual solution is discussing whether the persecution march itself should continue in the manner of the complaint. Addressing this issue within the piece intended to refute the accusation is inverting the logic of the procedure: the consensus begins to be examined within the procedural instrument itself, which it may render unnecessary.

Despite the previous foundation, the matter also reveals itself to be problematic from the perspective of economics and procedural rationality, which constitutes the second order of reasons. Requiring the issue to be addressed in the response to the accusation appears to be counterproductive, since, once the agreement has been concluded, the defensive piece will have been prepared uselessly. The technical defense is burdened with the production of a work that the consensual outcome can make disposable, in a flagrant waste of procedural activity and within a notoriously tight deadline, just so that the estoppel does not occur.

The third reason, and the most serious, goes beyond procedural convenience and reaches a constitutional level, with the unequivocal rupture of parity of arms.

A revealing parallel: the logic already enshrined in civil proceedings

Before examining in depth this third and most serious reason, it is worth noting that the solution now advocated for the criminal process does not constitute a novelty in the Brazilian legal system, taken in its systematic unity.

In fact, the Code of Civil Procedure itself, in its articles 334 and 335, section I, already precisely enshrines the sequencing logic proposed here: once the initial petition is received, a conciliation or mediation hearing is designated, and the deadline for the objection only begins to flow after the holding of this hearing, or its frustration.

The civil procedural legislator, therefore, has already recognized that consensus and contradiction on the merits cannot be required simultaneously from the defendant, under penalty of wasting the attempt at composition and burdening those who may not even need to present any technical defense.

Now, if this logic prevails in civil proceedings, in which interests are, as a rule, patrimonial and available, it would be paradoxical to deny it in criminal proceedings, in which the freedom of the individual is at stake.

The asymmetry that arises against the defense

The previously established premises lead to the examination of the most severe consequence of the mistake mentioned, namely, the structural imbalance between accusation and defense. By obliging the defense to deal with the agreement in its response to the accusation, it is required that it expose, in the same act, its entire strategy on the merits, at a time when the prosecution has already formulated and stabilized its narrative in the complaint, without any equivalent counterpart of exposure.

Consider, by way of illustration, the hypothesis of an investigator accused of allegedly committing a crime against the tax system, whose complaint alleges tax evasion through omission of income. If the non-criminal prosecution agreement is refused without satisfactory reasons, the defense finds itself compelled, within the same ten-day period, to produce three simultaneous work fronts: the request for reconsideration before the ministerial body, the articulation of a possible referral to the Coordination and Review Chamber and, cumulatively, under penalty of estoppel, the entire response to the accusation. If the reviewing body determines the conclusion of the agreement, the entire second block of work becomes a piece without any practical use, having irreversibly revealed to the Public Prosecutor's Office the strategy that the defense intended to reserve for an opportune procedural moment.

This vice directly affects the broad defense, contradictory and parity of weapons, enshrined in article 5, item LV, of the Federal Constitution. Parity of arms functions as a conditio sine qua non of a truly democratic process, requiring not only formal equality, but concrete equivalence of resources and opportunities between the parties. In this panorama, there is a performative contradiction: the order proclaims a consensual model, but structures the procedure in a way that penalizes those who seek it in good faith.

The asymmetry worsens in view of ministerial practice

This imbalance becomes even more obvious when compared with forensic practice. To a large extent, even before offering the complaint, the Public Prosecutor's Office itself proposes the agreement, that is, exhausting the consensual phase available to it before initiating the criminal process, without the delay in this prior deliberation creating any risk of estoppel.

Denying the defense the same opportunity, that is, postulating the reconsideration of the denial and requesting referral to the reviewing body before presenting the response to the accusation, means treating the accusation and defense with different weights.

There is no isonomic criterion that supports such asymmetry, nor does it seem reasonable to assume that the legislator, when establishing a refusal review mechanism, intended to empty it through a simple problem of manifestation sequencing.

Speed is not to be confused with speed

It could be objected that the creation of a specific phase, prior to the response to the accusation, would delay the process and compromise the reasonable duration, provided for in article 5, item LXXVIII, of the Federal Constitution. The objection, however, does not withstand closer examination: reasonable duration is not to be confused with the suppression of steps necessary for the legitimacy of the process, but with the absence of delays devoid of legitimate purpose.

The proposed phase has a legitimate and specific purpose, in the sense of enabling the exercise, in its own right, of powers that the law itself already confers on the person being investigated.

Furthermore, the comparison with the solution of the civil process demonstrates that the time interval claimed by the consensus phase does not compromise the reasonable duration of the process, as the Brazilian procedural system itself already coexists peacefully with similar sequencing. On the contrary, the alternative practiced today is the one that proves to be more costly in terms of speed, since preparing a response to the accusation, before a definitive analysis of the possibility and adequacy of consensus, consumes time and resources that the proposal presented now manages to easily avoid completely.

The solution: a specific phase, prior to responding to the accusation

It is necessary, in light of all the above, to examine the procedural design capable of correcting the identified asymmetry, which, it is argued, does not even require the enactment of a law in the strict sense. It is argued that, once the complaint has been received and before the deadline for responding to the accusation has elapsed, the defense must be given a specific opportunity to express its views on the appropriateness of the agreement, provoking the Public Prosecutor's Office to propose it or to justify the refusal. If the denial persists, the defense must also submit a request to send the case to the reviewing body.

Only after this phase has been exhausted, and the refusal maintained by the reviewing body, should the deadline for responding to the accusation expire, as occurs, mutatis mutandis, with the deadline for contesting the civil proceedings after the conciliation hearing has been frustrated. The aim is not to create a new stage or disturb the rite, but to recognize that article 28-A already presupposes a specific moment of debate on consensus, logically prior to the contradiction on the merits.

An important precedent that somehow recognizes the legitimacy of the proposal presented now

The thesis systematically developed in the preceding topics does not remain confined to the level of doctrinal construction in abstracto, but is already echoed in concrete jurisdictional manifestations. A recent paradigmatic decision, handed down by the 3rd Panel of the Federal Regional Court of the 1st Region, in a criminal habeas corpus trial filed by the signatories, in July 2026, focused on a hypothesis structurally similar to the one examined here. As the case is being processed under judicial secrecy, the parties' identifying information and the case number are deliberately omitted here.

In the case then submitted for examination, the patient, accused of allegedly committing a crime against the tax system, typified in article 1, items I and II, of Law no. 8,137/1990, filed, before the deadline for responding to the accusation had expired, a petition expressly stating that the statement presented was not confused with that document, but was intended to question the ANPP's ministerial refusal and to request the referral of the case to the reviewing body, under the terms of article 28-A, § 14, of the CPP. The court of origin accepted the claim and suspended the course of the criminal action until the deliberation of the reviewing body.

When the Coordination and Review Chamber declared that the agreement was unfeasible, however, the magistrate, instead of reopening the deadline for responding to the accusation, ordered the matter to be immediately continued, directly designating an investigation and trial hearing.

When considering the petition, the Regional Court unanimously recognized the occurrence of defense restriction, stating that, “although criminal procedural legislation does not expressly regulate the hypothesis now examined, the particularities of the specific case show that there was no effective presentation of the response to the accusation provided for in article 396-A of the CPP” [2].

The rapporteur noted, furthermore, that “the absence of this procedural phase, especially when the defense did not remain inert and opportunely raised the issue even before the pre-trial hearing took place, constitutes an effective restriction of the right to defense, with concrete harm to the accused” [2].

As a consequence, the Panel declared the nullity of all procedural acts carried out after the deliberation of the Coordination and Review Chamber, ordering the court of origin to reopen the deadline for presenting the response to the accusation.

The precedent, even if decided based on the particularities of the specific case, judicially confirms the central premise of this study, according to which the debate on the appropriateness of the agreement constitutes an autonomous procedural phase and logically prior to the response to the accusation, the suppression of which constitutes nullity due to restriction of defense, whenever good faith in the performance of the technical defense is demonstrated.

Conclusion

The consensual criminal process is not carried out only with the legal provisions of the agreement, but also with a procedural design that provides safe conditions for its exercise. Forcing the defense to discuss the agreement within the response to the accusation proves to be counterproductive and, ultimately, unconstitutional, as it anticipates the defensive strategy and breaks the balance between accusation and defense.

Ensuring the defense expresses the appropriateness of the agreement and the request for referral to the review body before responding to the accusation does not, in any way, constitute procedural turmoil or violation of good faith; Before that, it represents a requirement of coherence with the consensual model and respect for equality between the parties – a requirement that the civil process itself has already demonstrated that it knows how to meet, and that the jurisprudence of the Federal Regional Court of the 1st Region is already beginning, correctly, to recognize.

The new paradigm calls for a new design of the rite, and this design begins by placing each act in its proper time.

Notes

- LOPES JR., Aury. Criminal procedural law. 17. ed. São Paulo: Saraiva Jur., 2020, p. 224.

- Federal Regional Court of the 1st Region, 3rd Panel, Habeas Corpus Criminal, j. July 2026 (identifying data omitted due to legal secrecy).

Filipe Maia Broeto is a criminal lawyer, PhD student in Criminal Law, master in Economic and Company Criminal Law, specialist in Economic Criminal Law, Penal Sciences and Public Law and author of books and legal articles published in Brazil and abroad.

Daniel Broeto Maia is a criminal lawyer and specialist in Criminal Law and Criminal Procedure, Economic Criminal Law and Business Law.