NEGOTIATED CRIMINAL JUSTICE: THE NEED FOR VICTIM PARTICIPATION IN THE NEGOTIATION OF DAMAGE REPARATION IN THE NON-PROSECUTION AGREEMENT

Abstract

This article analyzes the Non-Prosecution Agreement (NPA), focusing on the condition of damage reparation provided therein and on the absence of victim participation in the negotiation process. Although the NPA represents progress by rationalizing criminal justice through consensual solutions, its normative structure reveals significant gaps regarding damage reparation and victim involvement. The objective of the study is to propose an alternative that reconciles the efficiency of the NPA’s reparation clause with the rights of the victim. The research, conducted under a hypothetical-deductive approach, was based on the hypothesis that victim participation in the negotiation of reparation is necessary, and identified three central problems: (i) lack of objective criteria for quantifying reparation; (ii) broad discretion of the Public Prosecutor’s Office in negotiations; and (iii) exclusion of the victim from the negotiation. The main findings indicate that the right to reparation is a prerogative of the victim and that such normative shortcomings may reduce the NPA to a merely depenalizing instrument, undermining its legitimacy and diluting its restorative purpose. The study concludes that, although Resolution N°. 289/2024 of the National Council of the Public Prosecutor’s Office (NCPPO) has promoted advances regarding victim participation, its regulatory nature limits its practical effectiveness. Therefore, the article argues for the need for clear, binding, and more robust normative guidelines to ensure the protection of victims’ rights.