The “Acordo de Não Persecução Penal — ANPP”, a Brazilian non-prosecution agreement provided for in Article 28-A of the Code of Criminal Procedure, has changed how the justice system deals with non-violent offenses. Even so, there is still a lot of confusion about when an ANPP can be negotiated – especially when the case has already moved forward and there is even a conviction on record.
For a long time, the prevailing view was that the agreement could only be offered before the indictment. Recent decisions by the Brazilian Supreme Federal Court (STF) and the Superior Court of Justice (STJ), however, show that this understanding is outdated. Today, in several scenarios, an ANPP remains possible even at the appeals stage, as long as the case has not become final.
This article explains, in a straightforward and up-to-date way, in which situations this can happen and how this interpretation became part of Brazilian criminal procedure.
The turning point: how the STF and STJ expanded the use of the ANPP
The restrictive view on the proper timing for an ANPP changed after the judgment of Habeas Corpus No. 185.913/SP, in which the Supreme Federal Court held that Article 28-A of the Code of Criminal Procedure has a hybrid nature – both substantive and procedural – and therefore applies retroactively as long as there is no final and unappealable judgment.
Shortly afterward, the Superior Court of Justice consolidated this understanding in a binding way when it decided Theme 1.098, establishing that:
1 – The ANPP is a procedural criminal agreement created by a rule that has a procedural aspect – allowing the parties to reach a composition in order to avoid the filing of criminal charges – and a substantive aspect, since it provides for the extinction of criminal liability when the obligations assumed in the agreement are fulfilled (Article 28-A, § 13, of the Code of Criminal Procedure).
2 – Because of this hybrid nature, the rule must follow the constitutional principle of retroactivity of the more lenient criminal norm (Article 5, XL, of the Federal Constitution). Accordingly, an ANPP may be entered into in criminal cases that were already pending when Law No. 13.964/2019 came into force, even if the defendant had not previously confessed, provided that the request is made before the conviction becomes final.
In criminal cases pending on 18 September 2024 (the date on which the
3 – Supreme Federal Court decided HC 185.913/DF), in which the ANPP would in principle be applicable but was not offered by the Public Prosecution Service, or was refused without a proper justification, the prosecution – acting ex officio, upon request of the defense, or prompted by the judge – must, at the first opportunity it speaks in the record after publication of that decision, give a reasoned opinion on whether an agreement is appropriate in that specific case.
4 – In investigations or criminal cases initiated after 18 September 2024, an ANPP should normally be proposed before the indictment is filed, without prejudice to the possibility of offering the agreement during the criminal proceedings, where appropriate.
From that framework, two types of situation stand out as strong grounds for negotiating an ANPP even at the appeals stage.
Cases already pending on 18 September 2024. In cases that were pending on 18 September 2024, the Public Prosecution Service has a duty to reassess whether an ANPP is appropriate whenever the agreement would be theoretically possible and was not properly examined. This covers, for example:
- cases in which there is already a conviction, but the decision is under appeal;
- proceedings in which the prosecution refused an ANPP based on criteria that have since been overruled (such as the mere fact that the indictment had already been received);
- situations in which the possibility of an agreement was simply never considered.
In all these scenarios, the prosecution must give concrete reasons either for offering or for refusing the agreement, under this new legal framework. Although the STJ indicated that this reassessment should take place at the first opportunity the prosecution speaks in the case after the precedent was set, this has not happened in many files. That is why an individualized review remains so important.
Cases in which something changes and the ANPP becomes viable during the proceedings. A second set of situations involves cases in which the ANPP was legitimately ruled out at first – in the investigation or even during the trial – but circumstances later changed in a way that makes the agreement viable.
A classic example is when the charge itself is modified halfway through the proceedings. In such cases, the new accusation may fit the legal requirements for an ANPP, even if the original charge did not.
The Public Prosecution Service of the State of Paraná (MPPR) has expressly addressed this scenario in Opinion No. 16 of its Legal Affairs Sub-Prosecutor’s Office, which deals with ANPPs:
“Whenever the original accusation is modified and the other legal requirements are met, it is possible to enter into an ANPP during the criminal proceedings, and the Public Prosecution Service must, ex officio, duly and expressly assess whether the agreement is viable.”
Another frequent example is that of a suspect who could not be located for questioning during the investigation and ends up being indicted without ever having taken part in the proceedings or even knowing about them – not by choice, but due to practical impossibility.
This situation is also addressed in two MPPR opinions:
Opinion No. 4
If the suspect cannot be located, the prosecution may refrain from offering an ANPP at that stage; but if the person later appears in the case, he or she must be given an opportunity to benefit from the agreement.
Opinion No. 18
Default (revelia) initially prevents the execution of an ANPP because of its personal nature; however, if the defendant later appears, the prosecution may only refuse the agreement with a well-founded justification.
Conclusion: a conviction does not always mean the end of negotiation
The new legal regime of the ANPP – built by the STF, the STJ and the institutional guidelines of the Public Prosecution Service – makes it clear that the possibility of an agreement does not end with the filing of the indictment, is not extinguished by the first-instance judgment, and remains viable until the conviction becomes final, as long as the substantive requirements are met.
For many defendants – especially those who were convicted without ever having had a real chance to negotiate – this represents a concrete opportunity to resolve the case with greater predictability, less personal and financial cost, and a more favorable legal outcome.
If you or someone close to you is in a similar situation, it is worth obtaining a careful legal assessment of whether an ANPP is still possible in light of these developments. Every case has its own particularities, and a detailed analysis makes all the difference.
Our team is available to review your case and determine whether it is still possible to pursue an agreement. Get in touch and speak with a lawyer who is experienced in criminal negotiation.
