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For Minister Fernandes, the position adopted by the 6th class, in theory, reveals a possible divergence with the STF's jurisprudence.

From the Editor

 

The vice-president of the STJ, minister  Fernandes, admitted an extraordinary appeal by the MPF against the ruling of the 6th panel which, in September last year, upheld the annulment of the jury that convicted four defendants for the Kiss nightclub tragedy, in Santa Maria/RS. With the admission of the extraordinary appeal, the case passes to the STF for analysis.

 

For the minister, the position adopted by the 6th class, in theory, reveals a possible divergence with the STF's jurisprudence. The vice-president of the STJ also pointed out that the discussion has a constitutional nature and, therefore, must be taken to the Supreme Court.

 

By majority vote, in upholding the TJ/RS ruling, the 6th panel considered that several illegalities occurred in the jury court session that sentenced 

 

Among the illegalities cited were failures in the selection of jurors, the holding of a private meeting between the presiding judge of the jury and the jurors - without the participation of the defense or the Public Prosecutor's Office -, in addition to irregularities in the preparation of the trial questions.

 

In the extraordinary appeal, the MPF alleges, among other points, that the issues considered illegal by the TJ/RS and the 6th panel of the STJ, in fact, were not pointed out at the appropriate time by the defense, further arguing that the request for recognition of the nullities would depend on demonstrating actual prejudice to the defendants, which did not occur in the present case.

 

 

Extraordinary appeal allowed for the STF to examine the nullification of the Kiss Nightclub jury. (Image: Antônio Machad

Claim of nullity and proof of loss

 

Minister  Fernandes cited a STF precedent in the sense that the recognition of procedural nullity must be made at the first opportunity presented to the defense, under penalty of estoppel (loss of the opportunity to demonstrate).

 

According to the judge, the Supreme Court has also understood that, both in cases of absolute and relative nullity, it is necessary to demonstrate the concrete harm to the party that raises the irregularity, as it is not possible to declare nullity by simple presumption.

 

"It is observed, therefore, that the position adopted by the 6th panel of this Superior Court reveals, at least in principle, a possible discrepancy with the jurisprudence of the Supreme Court, whether due to the characterization of nullity as endowed with presumed prejudice, regardless of the concrete demonstration, whether in view of the possible extrapolation of the opportunity to argue the alleged loss" , he added.

 

In addition to the possible divergence of understanding between the two Courts, Og ​​Fernandes highlighted the complexity and relevance of the matter examined in the process, especially in relation to the principles applicable to the jury trial and the publicity rule for judicial decisions.

 

The vice-president of the STJ also recalled that an extraordinary appeal filed by the MP/RS has already been admitted by the TJ/RS, "with the return of the matter to the STF remaining consolidated".