O excesso de linguagem na decisão de pronúncia: nulidade relativa ou absoluta?

Abstract

Provided for in art. 5, XXXVIII, of the Federal Constitution, the court of the jury has jurisdiction over crimes against life, and is one of the legal institutions that cause greater interests of society and lawyers. The Law no. 11.689 / 2008 changed the jury procedure, from receipt of the complaint until the judgment in plenary, and among those promoted innovations, deserves special emphasis the new wording of art. 413 of the Criminal Procedure Code. According to the cited provisions, the pronunciation should be based only technically, with measured and weighted language, aiming to eliminate any attempt to formation of early conviction of the jury by the judge of the guilt of the defendant. Failure to comply with this legal formality causes nullity. However, the law does not elucidated the nature of invalidity: if it is absolute or relative. The subject is controversial in doctrine and case law in the homeland, so that there is not a pacified understanding. The thesis of relative nullity appears to be inconsistent with several constitutional principles, while the theory of absolute nullity introduced more appropriate because it is in full compliance with the law. The objective is to demonstrate, under the constitutional perspective that the mentioned nullity is absolute. At work was adopted as the deductive method of approach to the subject can come up with a scientific logical conclusion. In addition, using as a methodological procedure to literature, the work aims to study the issue, raising the legal implications of each of the theses, as well as the understanding adopted by scholars and patriotic courts, to the end to show that the absolute theory shows more consonant with the legal system, especially with the fundamental constitutional principles.