Garantismo penal e presunção de inocência: uma análise da (in)adequação principiológica e argumentativa do in dubio pro societate aplicado à decisão de pronúncia do Tribunal do Júri

Abstract

This work aims to analyze the principiological and argumentative adequacy of the in dubio pro societate applied into the jury court’s indictment decision, taking into consideration the definition by Robert Alexy about principles and the angle on Criminal Guarantism proposed by Luigi Ferrajoli regarding the validity and effectiveness of legal norms. Taking in consideration that Jury Court is an immutable clause provided by for in article 5th, section XXXVIII of the Brazilian Federal Constitution of 1988, it’s juridic immutability in Brazilian history allows that, whenever, it’s components may be pondered, in this case, this piece utilizes the specifics of the indictment decision, which end the iudicium accusationis and takes the defendant to trial by the Sentencing Council. The moment that, in the jurisprudential field, the application of in dubio pro societate is accepted as one of the pillars for pronunciation, as a principle and argumentative axiom, it searches to exemplify the concept of principles by Alexy’s Fundamental Rights, to understand it’s definition and juridic application, as well as Criminal Guarantism as a juridic theory, introduced by Ferrajoli, to consolidate this work’s theoretic basis, scoping how this theory defines the norms before validity and efficacity criteria. Furthermore, this work presents a brief discussion about the Jury Court’s procedure, highlighting it’s specifics and it’s founding principles, leading to a broad analysis onto the (in)constitutionality of in dubio pro societate before the principle of presumption of innocence and its hermeneutic (in)subsistence. In order of enabling this study, the methodology of bibliographical review is adopted, permitting the understanding of the main academical and doctrinaire productions about this work’s subject, as well as the Jury Court’s functioning, in addition, a documental analysis based on the exploration of the normative and jurisprudential framework on the subject is carried out. Based on the parameters mentioned, it’s concluded the (in)adequacy of in dubio pro societate as a principle and argumentative axiom to be applied onto Jury Court’s indictment decision.