A execução antecipada da pena após condenação em 2ª instância: uma análise da presunção de inocência no ordenamento jurídico brasileiro

Abstract

The legal order of the country is nowadays mainly based on the Democratic State of Law, which seeks the greatest protection possible to the fundamental rights and guarantees of the individual. The presumption of innocence is stated in art. 5, item LVII of the Federal Constitution and in art. 283 of the Code of Criminal Procedure. These articles are crystalline in that the defendant can not be considered and treated as guilty until the final res judicata of his conviction. Consequently, both prisons with automatic effect and those resulting from judicial decisions are closed, as this would represent the execution of a sentence that has not yet come to light, even if it is probable. Notwithstanding the objectivity and clarity of the aforementioned provisions, the Federal Supreme Court, in 2016, altered the understanding pacified by the Court itself since 2009, in order to allow for the early execution of the sentence, even though there is no final res judicata , under a series of justifications and grounds. However, the intention of the Constituent Assembly in drafting the 1988 Charter is extremely clear in order to give maximum effectiveness to the State's duty to preserve human dignity and the rights of the accused. In this perspective, the jurisprudential change adopted by the Federal Supreme Court objectively objectifies the principle of presumption of innocence, set forth in art. 5, item LVII of the Constitution and art. 283 of the CPP. Such a change can not be made by means of jurisprudential understanding, even though the highest court in the country, in what appears to be a solipsistic and presumptuous attitude of the same. The Dialectic methodology will be used, in which the provisions of the Brazilian legal order, whether Constitutional or Infraconstitutional, will be analyzed, in a global context in which the breaking of paradigms is totally possible.