A busca pela racionalidade da utilização do duplo grau de jurisdição nas decisões manifestamente contrárias às provas dos autos proferidas pelo tribunal do júri

Abstract

This work analyzes the rationality in applying the double degree of jurisdiction in Brazilian law, more specifically in jury decisions which are manifestly contrary to the evidence in the case records. The double degree, substantially, aims to ensure the parties the right to review the judicial decision, in its fact and in the applied law, in order to avoid any injustices committed by a monocratic court or by the popular jury. The jury is composed by common citizens who render decisions motivated by intimate conviction. However, taking into account the legislator’s goal to concentrate the acquittal theses through the adoption of generic question (article 483, III, Code of Criminal Procedure), some people understand that absolute and peremptory powers are granted to the jurors. Therefore, although the sentencing board judges the Jury’s decision to be mandatory, this study seeks to analyze rationally the double degree of jurisdiction institute application in specific cases considering the possibility of appealing by the prosecution attorney in face of decisions that disregard the evidence presented. This would lead to a possible retrial by the sovereignty of the verdicts. In this sense, in the light of the 1988 Brazilian Constitution, the American Convention on Human Rights and the ruling of the Inter-American Court of Human Rights, the research carries out a rational and balanced reading of the double degree of jurisdiction in the Brazilian legal system so that the framework of principles which guides both the criminal law and the criminal procedural law is ensured. The approach by the hypothetical-deductive method starts from the following research question: the adoption of the generic question in the acquittal thesis should make the appeal unfeasible to the prosecution attorney when the decision is clearly contrary to evidence? In order to test the hypothesis that appealing is feasible by the prosecution attorney, this work approaches the right to double degree of jurisdiction, the incorporation, hierarchy, and interpretation of human rights treaties in Brazil, the proportionality principle in its two faces under the theory of 360-degree criminal constitutionalism of guarantees, the ruling of InterAmerican Court of Human Rights and Brazilian Supreme Court on the matter, and, specifically the appealing by the prosecution attorney in face of decisions that disregard the presented evidence. The conclusion is that the acquittal by intimate conviction of the jury that clearly goes against the case evidence shall not make the appealing by the prosecution attorney unfeasible in terms of article 593, III, subparagraph “d”, of the Code of Criminal Procedure, circumstance in which is suitable a retrial by a new jury.