A (in)constitucionalidade da execução provisória da pena em condenações proferidas pelo Tribunal do Júri a partir da Lei Nº 13.964/2019 frente ao princípio de presunção de inocência.

Abstract

The present work has the general objective of examining the changes in article 492, item I, paragraph “e” of the Criminal Procedure Code that were inserted with the implementation of Law nº 13,964/2019, known as the Anti-Crime Law, and verifying the (un)constitutionality of this change in light of the principle of presumption of innocence. This change in the article now stipulates the possibility of starting the execution of the sentence on a provisional basis for those sentenced to sentences exceeding fifteen years in prison, specifically in the context of trials by the Jury Court. Regarding specific objectives, the monograph proposes to carry out a historical survey of the principle of presumption of innocence and its behavior in the face of precautionary arrests; analyze the institution of the Jury Court, its origin and the principles by which it is governed, in addition to commenting on the judicial issues that led to the change in art. 492, I, ‘’e’’ of the Criminal Procedure Code; as well as evaluating the impacts that this change will have on national jurisprudence and the constitutional implications. In this context, due to the complexity of the matter, Declaratory Constitutionality Actions nº 43, 44 and 54 were presented under Topic with General Repercussion n. 1,068 before the Federal Supreme Court. The objective of these actions is to assess whether recent changes in infra-constitutional legislation respect the constitutional principles related to the presumption of non-guilt. Consequently, the central question of this research is to investigate how the Brazilian Supreme Court is approaching this controversy and whether the arguments of the Supreme Court Ministers to support or oppose legislative changes are in accordance with the legal structure and constitutional principles of the presumption of innocence and the double degree of jurisdiction. To achieve this objective, the study used an exploratory approach, with inductive methods and research based on documents and specialized literature. Thus, an inconsistency is identified between the application of provisional execution of sentences during trials by the Jury Court and the current constitutional framework, notably in relation to the principle of presumption of innocence. Therefore, it is argued in favor of the unconstitutionality of article 492, item I, item 'e', of the Code of Criminal Procedure.