THE CORUMBIARA CASE

SYNTHESIS: “THE INSTITUTION OF THE JURY, FOR BRAZILIAN LAW.”

1. The Constitutional origin of the Jury.

The Federal Constitution (FC) of 1967, with the edition of the Amendment nº. 01, of October 17, 1969, maintained in the chapter on the Rights and Guarantees of the Individual, the institution of the Jury, with its competence established for the judging of malicious crimes against life (art. 153, § 18). The constant reference of the Lei Magna of 1946 was eliminated, to the “sovereignty of the verdict” of the jury (art. 141, § 28), that it had inferred there for the first time innovating the context of the Republican Constitutional Letters, of 1891 (art. 72, § 31) and of 1934 (art. 72), which only declared that “the institution of the Jury is maintained”, while the Constitution of 1937 simply omitted any mention on the matter.
It befell the Federal Constitution promulgated to October 05, 1988, to proclaim the “institution of the Jury as recognized with the organization given to it by the law”, except when the following must be assured:
a) the fullness of defense;
b) the secret of the vote;
c) the sovereignty of the verdict; and
d) the competence for the judgment of malicious crimes against the life “(art. 5., XXXVIII).

Therefore, the Court of Jury was conserved in the organization of justice, with the attribute of identical competence to that which was prescribed in Federal Constitution of 1946 - the judging of malicious crimes against life.
In relation to such crimes, the matter is under its own strict jurisdiction, only admitting, justified by criteria of a practical order (to liberate the innocent from the course of events of the trial before the Court of Jury, which meets periodically), the hypothesis of the “summary acquittal”, in the case prescribed in art. 411 of Code of Penal Process, as by the judge, with “ex- officio” resource, as in 2nd instance, if there is appeal to the charge.
Other exceptions are confronted, expressly established in the Federal Constitution of 1988, in relation to the competence of Federal Supreme Court, to process and to judge, originally, in common penal infractions, the authorities mentioned in art. 102, I, b and c; the said of the Superior Court of Justice, to process and to judge, in the common penal infractions and in the crimes of responsibility, and the other authorities that enumerate (art. 105, I, a); and, finally, that of the State Military Justice, with competence to process and to judge the members of the Military Police of the States, in military crimes defined in law, article 125, § 4th.
It is repealed, in this way, in relation to such characters, when they are charged with criminal practice, the competence that would be particular to the Jury, in the terms of the article XXXVIII, d, of Federal Constitution of 1988. The competence to judge malicious crimes against life is transferred, to the Courts of Justice.
When it is homicide practiced by magistrates of any judiciary circumscription - Chief Judges or Judges of Justice -, the competence to try them will be, in relation to the Chief Judges, originally, of the Superior Court of Justice; and, concerning the Judges of Justice, of the very Court of Justice of the State where they serve.
In relation to the magistrates of the highest judiciary circumscription, of each State and of the Federal District, the competence of Superior Court of Justice elapses from article 105, I, of the Federal Constitution of 1988. And in relation to all other magistrates, it is found, as prescribe, for the local Court of Justice, in article 96, III, of the Carta Magna.
Here, still another exception to the general and constitutional rule that attributes competence to the Court of Jury to judge crimes of malice against life, is verified.
There is still another exception in relation to of the competence of the Jury, when a Counselor of the Court of Budgets is accused of homicide. The Superior Court of Justice will then try him.
The Jury is more than just a mere judiciary organ, it is a political institution, placed between the Rights and Guarantees of the Individual, so that it remains preserved in its essential elements, recognized to be implicitly, a right of the citizens to be judged by their equals, at least on the material existence of the crime and the precedence of the imputation.

1.1. In the realm of the state

According to the disposition of the Code of Penal Process (CPP), art. 87, given to the Courts of Justice is the competence to originally process and to put to trial, in common crimes, the titular of positions in the Executive Power, judges of inferior instance and members of the Public Ministry. The Federal Supreme Court, declaring that, “there must not be any confusion between a special forum and a privileged forum”, declared such device constitutional.
The competence of the Courts of Justice extends equally to trial of Secretaries of State.

2. The jury as an organ of Common Justice of the State

The Jury is an organ of Common Justice of the State, within this justice it is characterized as a special organ, because of its attributes and the format of its composition. It has, in this way, the perfect placement of the jury in the area of the Judiciary Power: it is a special organ of the Common Justice.
From its existence, it results that the trial is accomplished by fellow citizen of the accused, who are members of the jury - judges who bear no title - recruited from among those qualified by the penal process law. They are the natural judges to decide in the causes prescribed in the text of the Lei Magna. It was included among the established guarantees by the said to safeguard the model of judgment to which it proceed. It is destined to the protection of individual freedom, of citizens, and in order to equally provide (ad prover) the accomplishment of justice in concrete cases.

3. Crimes within the competence of the jury.

The criminal procedure for crimes subjected to the competence of the jury embraces:
a - malicious , simple, privileged or qualified homicide (art. 121, §§ 1st and 2nd);
b - the inducement, instigation or aid to suicide (art. 122 of Penal Code- PC);
c - infanticide (art. 123 of PC);
d - abortion provoked by pregnant women, or with their consent (art. 124 of PC), or by third parties(arts. 15 and 126 of PC).

There is no difference if the crimes are accomplished or are attempts.

4. The organization of the Jury

4.1. Enlistment

The members of the jury will be enlisted annually, by the Presiding Judge of the Jury, under his/her responsibility, from among citizens of acclaimed decency, by means of a choice, by the Magistrate, based on his/her own knowledge, or through trustworthy information. It is expected that the judge will act with criterion in the selection of people to serve the Jury, seeking in several segments of the community for those who best represent them.
This does not mean that they should be distinguished because of the social position, nor for their prominence in society, but only for their decency. Diversification of social functions is recommended, as is possible, so that the society will be present in each of its levels.
The judge may request from local authorities, class associations, professional unions and public partitions the indication of citizens who bear the legal conditions. (Article 439 of the Code of Penal Process - CPP).
The general list, to be published in the month of November of each year, may be altered “ex-officio”, or by virtue of complaint of “anyone of ‘the people’”, up to the date of the definitive publication, with recourse, within 20 days, to the Superior Instance, without a suspensive effect (art. 439, single paragraph of the Code of Penal Process).
The general list of the members of the jury, with the indication of the respective professions will be published in the press, where there is press, and fixed on the door of the building of the Forum. The name of those enlisted, with the indication of their residence, will be written in identical cards, which, after having been checked with the presence of the Public Ministry, will be kept in an urn locked with a key, under the responsibility of the judge (art. 440 of CPP).
This phase is of a great relief, in that it compiles for the following year, the body of a jury that will decide in the trials of malicious crimes against life, in the Judicial District.
It is from the referred urn, which is called “the general urn” that the names of 21 jury members will be extracted, by raffle, (art. 427 of the CPP), and the cards will be taken to another urn by the judge, similarly locked with a key, and which will remain under his/her power (article 4238 of the CPP). The public notary in a book destined to this end will draw all that takes place to this effect, up. This book is the so-called “Book of the Raffle of Members of the Jury”, which every register office for Jury should possess.
The name of the jury members raffled for the meeting of the Jury will be registered in proclamation and be sent at once, to be fixed to the door of the building of the Forum, and published in the press, if there is press, art. 429 § 1º of the CPP). Publication in the press will be dispensable, when the fixing in the appropriate place has adequately served its purpose. The annexing of a copy of the term of the raffle to each process is also dispensable. That term should be registered in its own book, according to article 428 of the CPP. The process of law in no way states that the trial be null because there was no certification in the judicial process that the raffle did not take place. This is found certified in the book, through term. The nullity would exist in the case of the lack of the raffle itself.
The service of jury is obligatory, and to refuse to do it, motivated by religious, philosophical or political conviction, will cause the loss of political rights of those who refuse to comply. The Code of Penal Process (art. 439), still refers to article 119, b, of the Political Letter of 1937. Now the reference text is that of articles 5, VIII, and 15, IV, of the Federal Constitution of 1988.

4.2. The period of the enlistment

The first publication of the list of members of jury will be made in the month of November of each year, in which the profession of those chosen should be indicated, (article 439, single paragraph, and 440 of the CPP).
In the second fortnight of the month of December of each year, the definitive publication will be effected with the modifications, “ex-officio”, or by virtue of complaint, as already mentioned. As it has already been emphasized, this phase is important because it defines, for the following year, the team of members of the jury.

4.3. Requirements for enlistment

a - age, over 21 years;
b - acclaimed decency;
c - Brazilian citizenship.

4.4. People who are ineligible:

a - aged over 60 years (art. 434, CPP);
b - The President of the Republic and the Ministers of State;
c - The Governors of States, Territories and the Federal District and respective Sate Secretaries;
d - The Members of the National Congress, of the State Legislative of Assemblies and of the City Halls, while their meetings last;
e - The Municipal Mayors;
f - magistrates and Members of the Public Ministry;
g - court officers and employees of the justice;
h - the chief, other authorities and employees of the Police Force and Public Security;
i - military personnel in active service;
j - women who do not exercise a public function and those who can prove that, by virtue of domestic occupations, the service of member of the jury is particularly difficult for them;
l - through solicitation, those who have effectively exercised the function of member of the jury for one year, except in places where such exemption can result in damage to the normal service of the jury (art. 436, single paragraph of CPP).

4.5. People who are dispensed

a - doctors;
b - ministers of a religious confession;
c - pharmacist and midwives can request the dispensation; and if the judge recognizes the need, will grant it.

4.6. Limits to the number of members of the jury

a - from 300 to 500 members, in the Federal District and in the Judicial Districts with more than 100 thousand inhabitants;
b - from 80 to 300 in the Districts of smaller populations (art. 439 of CPP).

5. COMPOSITION AND PERIOD OF THE ACCOMPLISHMENT OF THE SESSIONS

5.1. The number of members of the jury

The Court of Jury is composed of a Judge of Justice, who presides, and 21 lay judges (the members of the jury, who will be raffled from among those enlisted).

5.2. The Council of Sentence

The Council of Sentence will be constituted, in each trial session, of seven juries, from among the 21 previously raffled.

5.3. The Accomplishment of the sessions

Concerning the period of the functioning of the Jury, this is ordained by the Code of State Judiciary Organization that will occur in the following periods:
a - in the Judicial District of the capital, the months of March, June, August and December;
b - in the Judicial Districts of the interior, where there is criminal jurisdiction, the months of March, June, September and December;
c - in the other Judicial Districts of the interior, the months of March, June, September and December.