Jury nullification? Reflections derived from the argumentum a fortiori brought by the opinion of Min. Fachin on the ARE 1225185, Tema/RG 1.087

• Main Author: Hugo Soares
• Format: Article
• Language: Spanish
• Published: Instituto Brasileiro de Direito Processual Penal 2021-08-01
• Series: Revista Brasileira de Direito Processual Penal
• Subjects: tribunal do júri; clemência; garantia institucional; povo; renúncia soberana à pena
• Online Access: http://www.ibraspp.com.br/revista/index.php/RBDPP/article/view/468

The paper aims to answer the problem of the legitimacy of the jury nullification through the critical analysis of the argumentum a fortiori that sustains its inadmissibility in trials of heinous crimes against life because if neither the Parliament would be allowed to waive punishment, much less would the Jury be authorized to do so. The paper raises the hypothesis that the Jury is indeed not hierarchically inferior to the Parliament, so that the premises of the argumentum a fortiori would be mistaken. A bibliographical review based on the criminal functionalism is carried out regarding the legal nature of the Jury Court in the legal system and its dogmatic consequences, in order to verify the raised hypothesis, which observes that that the Jury corresponds to an institutional guarantee belonging to the People, allowing us to conclude that it is hierarchically superior to the Parliament and that the Jury nullification should therefore be seen as a sovereign waiver of the punishment.