Sobre la autodelación, la heterodelación y otras formas de colaboración en Derecho penal sustantivo: análisis comparado Portugal-España

Abstract

This paper analyzes the concept of plea bargaining in criminal cases from a comparative perspective between the Portuguese and Spanish legal systems, paying particular attention to its foundation and normative configuration. Starting from the observation that both systems lack a unified regulatory framework and present a fragmented structure of plea bargaining mechanisms, the study identifies a functional convergence in the use of plea bargaining as a criminal policy instrument aimed at obtaining relevant information for the prosecution of complex crimes. It argues that plea bargaining cannot be based on a reduction in the deservingness of punishment, given that the wrongfulness of the act and the culpability remain unchanged, but rather on a lesser need for punishment, in connection with the preventive aims of sanctions. Its link to special prevention is highlighted, insofar as the subject's cooperation reveals self-resocialization and a reduction in their dangerousness, as well as to general prevention, both in its positive and negative aspects. The comparative analysis reveals that, despite sharing the same logic of plea bargaining in criminal law, both systems differ in their normative articulation and contextualization. While the Spanish model integrates denunciation into the field of substantive criminal law, the Portuguese model presents a formally procedural configuration, especially in relation to confession, although with material effects on the determination of the penalty.