IDP professor Gustavo Mascarenhas is a columnist for Conjur.
Check out the article: https://www.conjur.com.br/2020-out-22/pensando-habeas-eles-passarao-eu-passarinho-liberdade-poema-vida
Writing a column about the role of Habeas Corpus in the Supreme Federal Court is to constantly pursue obstacles to freedom. A quick consultation of penal schools is enough to notice that the evolutionary path of the theory of punishment is heading towards a civilizing direction that indicates that the end of deprivation of liberty is a distant goal. With the evolution of penal sciences, the search is for the most complete justification for the imposition of punishment, with increasingly sophisticated arguments. If every arrival is also a departure, we must have... start The jurisdiction must consider that the denial of liberty is, in itself, an act of violence—or, at the very least, the confirmation of one. It is not forgotten that this violence can also be legitimate, perpetrated by a State that seeks, by some means, to guarantee the stability of the social environment, but this issue needs to be elucidated from the point of view of human sentiment in a country that has chosen the dignity of the human person as the axiological core of its Constitution.
Recently, the First Panel, in Habeas Corpus 178.777 (rapporteur Justice Marco Aurélio, majority decision, September 29, 2020), established, according to the rapporteur's vote, that the pronouncement of the Jury Council that acquits the defendant based on the generic question of paragraph 2 of article 483 of the Code of Criminal Procedure is sovereign — even if the answer to the question (“The jury acquits the defendant.?), is completely dissociated from the evidence produced in the criminal proceedings. The panel concluded that the prosecution's appeal based on an alleged (by the Public Prosecutor's Office or by an assistant prosecutor) "decision manifestly contrary to the evidence in the record" is incompatible with acquittal.
This case perfectly illustrates the humanistic approach that should guide the evolution of Criminal Law: even when the crime is proven and the perpetrator identified, the Jury, composed of judges who are peers of the accused, can recognize that the situation warrants clemency. There is nothing more humane than expressing this sentiment in the face of a crime.
In his leading opinion, His Excellency Minister Marco Aurélio pointed out that “the question addressed in the provision is generic in nature and not linked to the evidence. It stems from the essence of the jury, according to which the juror can acquit the defendant based on free conviction and independent of the arguments presented, considering legal and extra-procedural elements.” These extra-procedural elements are precisely the reason for the existence of the trial by jury. The juror may recognize himself in the defendant, raising the possibility that, faced with a similar situation, he could react in a similar way. Adopting this as a legal possibility to prevent a new trial is a remarkable evolution towards the implementation of desirable social relations. Telles Jr., from the point of view of the philosophy of law, had already emphasized that:
“Each human being possesses their own cognitive universe, that is, they possess an ordered set of knowledge, a cultural structure, which is their own system of reference, by virtue of which they attribute meaning to the realities of the world. All reality can be the object of knowledge. But knowledge of a reality is always conditioned by the system of reference of the knowing subject.”[1]
Now, there is nothing fairer than being judged by jurors who live close to the reality of the criminal context targeted by the trial and who will know, with a system of references better calibrated to that situation, how to establish the best meaning for that crime. There is no room to override this with the judgment of a Court of Appeals, disqualifying the view adopted by the Jury. The question contained in the provision is mandatory, and an affirmative answer does not imply—nor could it—the automatic annulment of the jury trial.
The answer “yes” therefore expresses the jury’s unequivocal perception, granting clemency. As Minister Gilmar Mendes rightly stated on another occasion, “Clemency constitutes a possible judgment within the sovereignty of the Jury, even if dissociated from the defense’s arguments” (RE 982.162, rapporteur Minister Gilmar Mendes, judgment of August 31, 2018), and, given the precept contained in article 5, item XXXVIII, subparagraph “c”, of the Political Charter — “the institution of the jury is recognized, with the organization that the law gives it, ensuring: […] the sovereignty of the verdicts” —, there is no room for doubt as to this sovereignty.
The most that the wording "manifestly contrary to the evidence in the record," as provided for in article 593, item III, subparagraph "d," entails is the annulment of the Jury Council's decision due to a procedural flaw. Minister Marco Aurélio, in Habeas Corpus 80.115 (rapporteur Minister Néri da Silveira, judgment of April 24, 2001), observed that "manifestly" is an adverb of manner, reserved for extraordinary situations, "when it is perceived, even, that the verdict was formalized in a context of greater perplexity and, perhaps, even under some pressure existing in the location." In other words, the prosecution retains both the right to appeal and procedural dialectics, provided that it is the case of this strict procedural hypothesis.
Moreover, the right to appeal—a fundamental guarantee for the convicted—cannot be turned against them, otherwise we would turn the penal rule into pure sophistry, establishing that, by assuming a fundamental right, one also assumes a (fundamental?) burden. The accusatory reasoning doesn't hold up: it produces an illusion of truth, which, although simulating a logical rule, is inconsistent and deceptive. Regarding this, Vasconcellos teaches that:
“(…) the right to appeal is realized for the accused in criminal proceedings, imposing the possibility of a broad review of the conviction. On the other hand, there is no such consecration for the accusing party, which authorizes the reduction of its impugning power. And, in this sense, there is a tendency to weaken the bilateral conception of appeals, introducing exclusive hypotheses and distinct scopes of review.”[2]
Soon, the Supreme Court will have the chance to rule on the matter in a case with general repercussions, in the judgment of ARE 1.225.185. Ministers Gilmar Mendes (rapporteur), Celso de Mello, and Marco Aurélio voted in a virtual session. The process was highlighted at the request of Minister [name missing]. Alexandre of Moraes.
The jury is a fundamental instrument in a society that seeks to understand itself. Defending the sovereignty of the acquittal verdict in this case is, at the same time, defending not only the defendant, but also the juror who, exposed to a crime against another's life, felt compassion. At the end of the straight road we face towards the humanism of punishments, there will always be freedom, as Quintana's view of society predicts: "All those who are there / Blocking my path, / They will pass… / I, a little bird!".
[1] TELLES JUNIOR, Goffredo. Quantum Law: Essay on the Foundation of the Legal Order. 9th Edition. São Paulo: Saraiva, 2014. P. 227.
[2] VASCONCELLOS, Vinicius G. Right to appeal in criminal proceedings. 2nd ed. RT, 2020. p. 94
