A (in)constitucionalidade da execução da pena em segunda instância face ao princípio da presunção de inocência.

Abstract

The present monographic work proposes an analysis of the relationship between the Principle of the Presumption of Innocence and the decision of the STF that allowed the execution of the sentence after decision in the second instance. Such a relationship provokes heated discussions about a possible unconstitutionality of the anticipated execution of the sentence, which could lead to a relativization of the Principle of Presumption of Innocence carved in art. 5, LVII of the CF / 88 and, as a result, be unconstitutional.The objective is to analyze the constitutionality of the execution of the penalty after decision in second instance through the study of the principle of the presumption of innocence, the Institute for the execution of the penalty, as well as the contrary and favorable theses to the matter. The object of the research in focus was developed based on the deductive method, and in relation to the procedures, the subject addressed was analyzed based on the bibliographic research technique, as well as, through jurisprudential analyzes, with the purpose of obtaining the objectives of this research. study, drawing a parallel between the analysis of the thematic and the proposed problematization. The current contrary to the anticipated execution of the sentence alleges that there would be a relativization of the Principle of the Presumption of Innocence, a hypothesis prohibited by the Magna Carta, in addition to the requirement of a final and unappealable decision to initiate the sentence, which would be disregarded, is based on the impossibility of reviewing facts and evidence after the second instance, in addition to the fact that no principle is absolute, and there is a need to respect also the reasonable duration of the process, for example. In view of the above, it is inferred more robustness in those who understand the unconstitutionality, due to, among other things, the clarity of art. 5, LVII, which establishes the need for a final decision to begin execution of the sentence, in addition to the fact that the constituent legislator established that the sentence should only commence before the final res judicata in cases of precautionary prisons.