The four convicted of the fire at Kiss nightclub, in Santa Maria (RS), in 2013, were released on Wednesday (3) after the Court of Justice of Rio Grande do Sul (TJ-RS) annulled the judgment made by the Court of Jury, in December 2021. Two judges voted in favor and one, against.
The Public Prosecutor’s Office of Rio Grande do Sul appealed the release, and there is still an appeal against the annulment, but, if the representation is not made to other instances, a new trial must be carried out, still without a set date.
The magistrates accepted the understanding that, among other points, the selection of the jurors did not take place within the period established by law. The judges’ decision also considered that the defenses were unable to access the list of jurors in advance.
What experts say
Maurides de Melo Ribeiro, professor of Criminal Law and Criminology at Universidade Presbiteriana Mackenzie Campinas, points out that, in the legal system, the decisions of the Jury Court cannot be modified by higher instances. The case can only be annulled due to, for example, procedural defects and sent for a new trial.
The new jury must try to carry out the analysis of the case without the points that configured the nullity.
Gustavo Sampaio, professor of Constitutional Law at UFF, explains that the annulment does not address “the merits of the decision, but the due criminal process”.
“The nullity happens when the sentence was made in a way that impacts the rite of the process. This depends from case to case. As for the procedural rules, they are provided for in the law. If there is a violation, it may be null and void. This does not mean that the jury does not have the power to convict, but that it reviews the decision”, says Sampaio.
With the annulment, and until the new trial is held, the defendants should be released, as explained by Ribeiro. “Any person who has not been convicted with res judicata is innocent. A lawsuit weighs on her, but she has not been convicted, she is innocent,” he highlights.
The professor also notes that, in the case of a new conviction, the defendants will have the possibility to appeal in the same way – not on the merits of the decision, but on procedural issues.
If the Public Prosecutor’s Office decides to appeal the annulment, the request must be forwarded to the higher courts — the Federal Supreme Court (STF) or the Supreme Court of Justice (STJ).
According to Ribeiro, in the event that these instances reject a request from the MP, the process would continue as it is now: a new jury would be scheduled.
If they comply with the request, that is, maintaining the prisons, the defense of the condemned could still appeal.
remember the case
On January 27, 2013, a fire at the Kiss nightclub, located in the central area of Santa Maria, Rio Grande do Sul, resulted in the death of 242 people and injured 636.
The fire started after one of the members of the Banda Gurizada Fandangueira fired a pyrotechnic device and the sparks hit the ceiling, which was coated with foam.
The members of the Kiss nightclub, Elissandro Callegaro Spohr and Mauro Londero Hoffmann, the lead singer of Banda Gurizada Fandangueira, Marcelo de Jesus dos Santos, and the music producer Luciano Bonilha Leão were sentenced on December 10, 2021.
See what the feathers were like:
- Elissandro Callegaro Spohr: 22 years and 6 months of imprisonment
- Mauro Londero Hoffmann: 19 years and 6 months of imprisonment
- Marcelo de Jesus dos Santos: 18 years of imprisonment
- Luciano Bonilha Leão: 18 years of imprisonment
Source: CNN Brasil