O Tribunal do Júri e o foro por prerrogativa de função: o enunciado da súmula nº. 721 do Supremo Tribunal Federal

Abstract

This work addresses the issue of which jurisdictional body is competent to hear a malicious crime against life when the accused is entitled by constitutional precept to a specific forum on account of the exercise of a given position or mandate (special jurisdiction by force of position). Which constitutional provision should prevail: the one set out in article 5, XXXVIII (d), which states that malicious crimes against life are subject to trial by jury, or any other constitutional rule vesting another jurisdictional body with authority to judge an accused who exercises a given position or mandate? The Brazilian Federal Supreme Court (STF) had already tackled this issue and consolidated its stand in Precedent 721. But the assumptions underlying the STF rationale remained a bone of contention. After all, it stands to reason that, in favoring the special jurisdiction by force of position in detriment to trial by jury, perhaps this approach ran counter the most well-ingrained tenets of the Brazilian Constitution by downplaying the importance of trial by jury, which epitomizes the maxim that all power emanates from the people. This work thus makes a historical study of this issue and points out the relevant role played by people s courts in cementing democratic values. Such background is followed by an elaboration on the grounds and precepts of the current rule of law system, to herald the trial by jury as a proper measure of the very dignity of human person. Consequently, this work concludes favorably on the special jurisdiction of trial by jury, which shall prevail over the constitutional jurisdiction by force of position