The judgment of admissibility in intentional crimes against life
The Federal Constitution, in its article 5, item XXXVIII, letter “d”, establishes that the Court of the Jury is competent to judge intentional crimes against life. In these cases, the conviction or acquittal of the accused is determined by seven jurors, lay persons, as a rule, without technical qualification.
Intentional crimes against life
These seven jurors can proclaim their verdict according to their free conviction, that is, the decision may have as its basis endo or extraprocedural grounds. Moreover, the decision-making process of the jurors dispenses with no justification. It is what is called free-standing, unmotivated conviction.
In view of this context, it seems logical to think that only accusations founded and with concrete support in sufficient evidence are subject to judgment by a Board of Sentence. Practice, however, reveals that this is not the reality. More often than not, at no time does an effective filter on the accusations formulated by the Public Prosecutor’s Office take place.
Early in the process, when the complaint is received, few judges make an effective analysis of the just cause for the prosecution. In fact, it is common to receive the complaint without any kind of reasoning. This procedure is chancelado by the own “Guardian” of the Constitution:
“The Court’s case-law is peaceful in that the receipt of the complaint, since it is not a decision-making act, does not require a statement of reasons” (ARE 845341 AgR, Rapporteur Min. DIAS TOFFOLI, Second Chamber, judged on 08/09/2015).
We have seen, therefore, that within the scope of the Jury’s Court, there is no strict control over the initiation of the process – receipt of the complaint without reasoning – and not at the end of the process – possibility of condemnation by lay judges in an unmotivated way.
Some unsuspecting people may think that the procedural filter for unfounded accusations lies in the admissibility judgment established in the pronouncement, according to the provisions of article 413 of the Code of Criminal Procedure: ” The judge will, in substance, pronounce the accused, if convinced of the materiality of fact and the existence of sufficient evidence of authorship or participation. ” Ledo mistake.
The admissibility judgment is almost mythical in that, at that moment, most doctrine and jurisprudence say that the so-called “principle” (which in principle has nothing) of the dubio pro societate, ie doubt “favors society “and leads to the submission of the fact to judgment by the Jury.
Thus, there is no filter in the complaint, there is no filter in the pronunciation and the control over the conviction is minimal. Moreover, the jury is the only institution that allows for conviction even if there is relevant doubt. Indeed, even if there is more than 40% doubt – in the case of a conviction in which four jurors vote for the conviction and three jurors vote for acquittal – the sovereignty of the verdicts must be respected.
In this way, it is necessary to recover the need to effectively carry out the procedural filter and the examination of just cause. In fact, only firm, robust accusations, supported by evidence, must remain to avoid injustice and the condemnation of innocent people.