Clemência no Tribunal do Júri? Reflexões derivadas do argumento a fortiori trazido no voto-vogal do Min. Fachin em sede do ARE 1225185, Tema/RG 1.087

The paper aims to answer the problem of the legitimacy of the jury nullification through the critical analysis of the  argumentum a fortiori  that sustains its inadmissibility in trials of heinous crimes against life because if neither the Parliament would be allowed to waive punishment, much less would the Jury be authorized to do so. The paper raises the hypothesis that the Jury is indeed not hierarchically inferior to the Parliament, so that the premises of the  argumentum a fortiori  would be mistaken. A bibliographical review based on the criminal functionalism is carried out regarding the legal nature of the Jury Court in the legal system and its dogmatic consequences, in order to verify the raised hypothesis, which observes that that the Jury corresponds to an institutional guarantee belonging to the People, allowing us to conclude that it is hierarchically superior to the Parliament and that the Jury nullification should therefore be seen as a sovereign waiver of the punishment.