IDP professor, Gustavo Mascarenhas, is a columnist at Conjur.
Check out the article: https://www.conjur.com.br/2020-out-22/pensando-habeas-eles-passarao-eu-passarinho-liberdade-poema-vida

Write a column about the role of Habeas Corpus in the Supreme Court Federal Court is to always pursue obstacles to freedom. A quick consultation of penal schools is enough to notice that the direction of evolution of the theory of punishment is in the direction of a civilizing path that indicates that the end of the deprivation of liberty is a distant arrival. With the evolution of criminal sciences, the search for the most complete justification for the imposition of the penalty is sought, with increasingly sophisticated arguments. If every arrival is also a departure, we must start the jurisdiction with the consideration that the denial of freedom is, in itself, a violence — or, at least, the confirmation of one. It is not forgotten that this violence can also be legitimate, from 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 feeling in a country that has chosen as the axiological nucleus of its Constitution the dignity of the human person.

Recently, the First Panel, in Habeas Corpus 178.777 (rapporteur Minister Marco Aurélio, decision by majority, j. 29.09.2020) ruled, in accordance with the rapporteur's vote, that the pronouncement of the Sentencing Council that acquits the defendant on the grounds in the generic aspect of paragraph 2 of article 483 of the Code of Criminal Procedure — even though the answer to the question (“ the juror acquits the defendant ?), is completely dissociated from the evidence produced in the criminal case. The panel concluded that the prosecution's appeal was incompatible with acquittal due to an alleged (by the Public Prosecutor's Office or an assistant prosecutor) "a decision manifestly contrary to the evidence in the case".

The case reveals exactly the humanist sense that should guide the evolution of Criminal Law: even if materiality is present and authorship is proven, the Jury, made up of magistrates who are peers of the accused, can recognize that the situation at stake deserves leniency. There is nothing more human than expressing this feeling in the face of a crime.

In the leading vote, His Excellency Minister Marco Aurélio made it clear that "the question addressed in the provision is generic in nature, not linked to the evidence. It arises from the essence of the Jury, according to which the juror can acquit the defendant based on free conviction and regardless of the theses conveyed, considered legal and extra-procedural elements". These extra-procedural elements are precisely the reason why the trial by the popular court exists. 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 notable evolution towards the implementation of desirable social relations. Telles Jr., from the point of view of the philosophy of law, had already highlighted that:

"Each human being has his own cognitive universe, that is, he has an ordered set of knowledge, a cultural structure, which is his own system of reference, due to which he attributes his meaning to the realities of the world. Every reality can be an object of knowledge. But knowledge of a reality is always conditioned by the knowing subject's system of reference."[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 will know, with a system of references better calibrated for that situation, to establish the best meaning for that crime. There is no scope to superimpose the judgment of a Court on appeal, disqualifying the view adopted by the Sentencing Council. The question contained in the provision is mandatory in nature and an affirmative answer does not imply — and could not — automatic nullity of the jury.

The answer "yes" therefore expresses the juror's unequivocal perception, granting leniency. As Minister Gilmar Mendes stated on another occasion, "Leniency constitutes a possible judgment within the sovereignty of the Jury, even if dissociated from the defense theses" (RE 982.162, rapporteur Minister Gilmar Mendes, j. 31.8.2018), and, in view of the precept set out in article 5, item XXXVIII, item “c”, of the Political Charter — "the institution of the jury, with the organization that gives it the law, ensures: [...] the sovereignty of the verdicts" —, there is no room for doubt regarding this sovereignty.

The maximum that the "manifestly contrary to the evidence in the case" provision, provided for in article 593, item III, item "d", entails is the annulment of the decision of the Sentencing Council due to a defect in the procedure. Minister Marco Aurélio, in Habeas Corpus 80.115 (rapporteur minister Néri da Silveira, j.24.04.2001), observed that "manifestly" is an adverb of manner, reserved for extravagant situations, "when it is perceived, even, that the verdict remained formalized in a context of greater perplexity and, who knows, even through some pressure existing on the ground". In other words, both the right to appeal and procedural dialectics are preserved for the prosecution, as long as this is the case with this strict procedural hypothesis.

In fact, the right to appeal — the convict's primary guarantee — cannot be turned against him, under penalty of turning the criminal rule into pure sophistry, establishing that, when assuming a fundamental right, one also assumes a (fundamental?) burden. Accusatory reasoning does not close: it produces an illusion of truth, which, although it simulates a logical rule, is inconsistent and misleading. In this regard, Vasconcellos teaches that:

"(...) the right to appeal is made concrete to the accused in the criminal process, imposing the scope of a broad review of the conviction. On the other hand, there is no aforementioned consecration to the accusing party, which authorizes the reduction of their power to challenge And, in this sense, there is a tendency to weaken the bilateral conception of resources, introducing exclusive hypotheses and different scopes of review".[2]

Soon, the Supreme Court will have the chance to give a general ruling on the issue, in the judgment of ARE 1,225,185. Ministers Gilmar Mendes (rapporteur), Celso de Mello and Marco Aurélio voted in a virtual environment. The process was highlighted by Minister Alexandre de 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 the life of others, showed compassion. At the end of the line we face towards the humanism of feathers, there will always be freedom, like Quintana's look at society, predicting: "All those who are there /Cramping my path, /They will pass... / Me little bird! ".

[1] TELLES JUNIOR, Goffredo. Quantum law: essay on the foundation of the legal order. 9. Editing. São Paulo: Saraiva, 2014. P. 227.

[2] VASCONCELLOS, Vinicius G. Right to appeal in criminal proceedings. 2ed. RT, 2020. p. 94