Execução provisória da pena – uma análise acerca do princípio da não culpabilidade após o julgamento do Habeas Corpus126.292/SP.

Abstract

The principle of presumption of innocence or non-culpability has been the intrinsic object of the discussion on the provisional execution of the sentence, whether or not it would offend the fundamental guarantee protected by the Federal Constitution of 1988. In view of this discussion, the study is entitled “Provisional execution of sentence - an analysis of the principle of non-culpability after the judgment of HC 126.292 / SP by the Federal Supreme Court”. The study focused on the following objectives: to analyze the principle of presumption of innocence, its historical-evolutionary origin in the juridical sphere, arising mainly from the ideas of the Enlightenment at the time of the French Revolution, its entry into force in the Brazilian legal order and its influence in criminal proceedings; to address the provisional execution of the sentence, emphasizing the modification of the understandings of the Supreme Court through the study of precedents until that time adopted by the Supreme Court; to know the consequences for the criminal process arising from the judgment of HC 126.292 / SP, pointing out the contrary and favorable arguments that led to the understanding that considered possible the provisional execution of the sentence after confirmation of the conviction in the second instance in face of the principle of non-culpability. For that, the deductive method and the bibliographic procedure consisting of research in doctrines, jurisprudence, scientific articles, normative species and in the Federal Constitution of 1988 were used. It should be pointed out that the subject matter is relevant, given that in addition to being recent, it has been observed throughout the work that there are several contradictory positions in the legal system and in favor of this precedent, and the non-linkage of the understanding by the courts or ministers of the STF to consolidated in the jurisprudence by this same court has generated legal uncertainty. At the end of the research, there was confirmation of the problem and the hypothesis elaborated, which are: problem - what are the implications of the current understanding of the Supreme Court on the provisional execution of the sentence in criminal proceedings? Hypothesis: The STF established, with the judgment of HC 126.292 / SP, a new precedent that implies the beginning of the fulfillment of sentence after the confirmation of the sentence in the second instance, and it is not necessary to wait for its final and unappealable decision. However, the Supreme Court Ministers themselves have not followed this understanding, causing some legal uncertainty.