THE (IN)DISPENSABILITY OF THE PUBLIC PROSECUTOR'S OFFICE IN THE ACTS OF THE SPECIAL CRIMINAL COURT

Abstract

This article analyzes the indispensability of the Public Prosecutor's Office in the procedural acts of the Special Criminal Court (JECRIM), focusing on the legal validity of preliminary hearings held without the presence of the Prosecutor. The central objective is to investigate whether delegating the penal transaction under Brazilian law proposal (transação penal) to conciliators or submitting written terms compromises the defendant's constitutional guarantees and the nature of the adversarial system. Theoretically, the study is based on the principles of orality, celerity, and regulated opportunity, contrasting the pursuit of procedural efficiency with the subjective rights to due process, the right to be heard, and a full defense. The methodology adopted is qualitative and bibliographic, based on the analysis of Law Nº.  9,099/95, criminal procedure doctrine, FONAJE statements, and the jurisprudence of the Superior Courts (STF and STJ). The main findings demonstrate that, although celerity guides the summary proceeding, the absence of the ministerial body in the offer of decriminalizing institutes constitutes a procedural defect, since the plea bargain is a complex act and an exclusive prerogative of the holder of the criminal action. It is concluded that such practice weakens the parity of arms and the voluntariness of the agreement, especially in scenarios of social vulnerability, resulting in absolute nullity due to a violation of the adversarial system. The contribution of this study lies in reinforcing the need for the physical and active presence of the Public Prosecutor's Office as a guarantee that consensual justice does not become a mere anticipation of sanction devoid of effective judicial and ministerial control.