PÓS-POSITIVISMO, ATIVISMO JUDICIAL E A DESNATURAÇÃO DA CONSTITUIÇÃO: A RELATIVIZAÇÃO DA SOBERANIA DO TRIBUNAL DO JÚRI NO JULGAMENTO DO TEMA 1.087 DA REPERCUSSÃO GERAL

Abstract

The Jury Court is one of the oldest legal institutions and, to this day, remains the subject of extensive debate within the field of Criminal Procedural Law. Having become part of the Brazilian legal system in the mid-1800s, it was with the 1988 Constitution of the Republic that this institution came to be more clearly defined within the country's legal framework, through which it was granted jurisdiction over intentional crimes against life. The Constitution guarantees the Jury Court, among other aspects, the sovereignty of its jurors' verdicts, which can be observed, above all, through what legal doctrine and case law refer to as the "generic question"—a mandatory question posed to jurors after they have recognized the materiality and authorship of the alleged crime. This question, which allows jurors to acquit a defendant even after acknowledging the materiality and authorship of the offense, has been the subject of both praise and criticism over the years, with ongoing debate regarding the possibility, or not, of reviewing a decision that relies on this provision. The matter reached the Federal Supreme Court (STF), which, through General Repercussion Topic 1,087, ruled on the admissibility of such appeals in cases where the court reviewing the appeal finds that the verdict violated constitutional principles, binding precedents, or was manifestly contrary to the evidence in the case records, thus even expanding upon the circumstances already provided for in legislation. This paper, therefore, aims to analyze the compatibility of this decision from a constitutional perspective, in order to assess whether the ruling violates the sovereignty of jury verdicts. To that end, it discusses legal post-positivism, which elevates legal principles to the status of norms, and the way in which this school of legal thought has increasingly influenced judicial decisions in Brazil, leading to growing judicial activism, one that departs from the letter of the law and seeks meta-legal arguments to justify rulings. A literature review was employed, through analysis of scholarly work by both proponents and critics of this judicial approach, to ultimately conclude, through the deductive method, supported by the Constitution and infra-constitutional legislation, that the aforementioned interpretation relativizes the constitutional provision of jury verdict sovereignty and, consequently, is incompatible with the Federal Constitution, representing a true application of principles to the detriment of formal law.