12/09/2024 – 19:50
The Supreme Federal Court (STF) decided this Thursday, the 12th, that those convicted in the Jury Court must serve their sentences immediately after the trial, regardless of the penalty.
The Jury Court judges intentional crimes against life, such as homicide, femicide, infanticide and abortion outside the cases provided for by law. The prevailing position among the ministers was that immediate execution of the sentence will reduce impunity in these cases, which involve great social sensitivity.
In general, criminal sentences only begin to be served after the case has been “finally decided,” that is, after all appeals have been exhausted. This model is adopted to prevent the defendant from being arrested while he or she still has a chance to overturn the conviction. However, for convictions by jury, the anti-crime package approved by Congress in 2019 brought forward the serving of the sentence if it is longer than 15 years.
With the change, the Penal Code now provides that the judge must determine the “provisional execution of sentences, with the issuance of an arrest warrant, if applicable, without prejudice to the knowledge of appeals that may be filed”.
In practice, with today’s decision, the STF expands the reform of the anti-crime package to reach all convictions by the Jury Court, including sentences of less than 15 years in prison.
The Supreme Court’s decision has general repercussions, that is, it must be observed by all judges and courts in the country.
‘Popular sovereignty’
In general, the jury’s decision cannot be reviewed by the Judiciary. The verdict of the people is considered sovereign in these trials. The exception is when the defense alleges formal irregularities in the conduct of the jury. In this case, the ordinary courts can analyze the appeals and, if they consider that there are procedural defects, order a new trial with different jurors, but never judge the evidence on their own.
The matter began to be debated in the STF in 2020. After two requests for more time for analysis, the case ended up being sent to the physical plenary at the request of Minister Gilmar Mendes. As a result, the score was reset and the vote had to be restarted from the beginning.
Ministers Luís Roberto Barroso, André Mendonça, Kassio Nunes Marques, Alexandre de Moraes, Dias Toffoli and Cármen Lúcia positioned themselves in favor of the immediate execution of the sentence, regardless of the sentence.
Three arguments prevailed among the majority of the STF. The first was that, as a rule, a judge cannot review the decision of the Jury Court, meaning that it is unlikely that the decision will be reviewed on its merits. The second was that the possibility of awaiting appeals in freedom could delay the execution of the sentence and create a feeling of impunity and discredit in the Justice system. Finally, the ministers argued that the defense could request habeas corpus if it found legal flaws in the decision of the lay jurors.
“The jury puts that person on trial, society judges, the person is convicted and leaves in the same way as the victim’s family,” criticized Alexandre de Moraes. “We cannot allow this situation of impunity to continue.”
Minister Luís Roberto Barroso, president of the STF, followed suit: “It violates the basic principles of justice, as well as the credibility of the Judiciary, for a convicted murderer to walk free after trial, side by side with the victim’s family. This situation is aggravated by the indefinite delay of the final judgment, through successive appeals, causing the sentence to expire or be served many years after the crime occurred.”
Divergences
The dissenting votes were taken by Dean Gilmar Mendes, who voted against the immediate execution of the sentences, and Ministers Edson Fachin and Luiz Fux, who defended the automatic execution of the sentence under the terms provided for in the legislation, that is, for defendants sentenced to more than 15 years. Fux made a reservation that the time limit should be relaxed only in cases of femicide.
They argued, for example, that during the trial, the defendant may be placed in preventive detention by the judge conducting the trial and presiding over the Sentencing Council. They also highlighted that lay jurors often, due to lack of knowledge, disregard mitigating factors for the crime.
“Nobody here is defending lenient treatment for murderers,” said Gilmar.
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