A execução provisória da pena: uma reflexão acerca da sua (in) constitucionalidade à luz da jurisprudência do STF nos últimos oito anos

Abstract

The present work has the objective to discuss the constitutionality of provisional punishment execution, based at the jurisprudence of the Supreme Federal Court at the last eight years. Initially, it will be done an approach about the normalization of the principles at the Democratic State of Law, its reflections at the Criminal Law and Criminal Procedure. In a second moment, it will be done an analysis of those decisions emanated by the Constitutional Court, highlighting the main favourable and unfavourable arguments to the anticipated execution of the condemnatory criminal sentence. The methodology used is based on bibliographic researches of doctrine and legislation, prioritizing the study of the jurisprudence. From the research we can see the main argument from those who defend the provisional punishment execution, is what the jurisdiction of double degree ends, having no more discussion of evidences at the headquarters of special and extraordinary resources, not being given the suspensive effect. Besides, the understanding is based at the urgent necessity of give the effectivity to the jurisdiction based on the principle of the prohibition of the deficient protection. By the other side, it also verify that the problem is a consequence of the legislative inertia in a way of reduce the group of resources placed at the disposition for both parts, most of the times used in a delayed way, whose price is being supported by the accused of good faith, that has denied the guarantee of the presumption of not culpability and the legal process in a clear violation to the Federal Constitution, that adopted expressly the system of not having resources anymore to the guilt formation. Besides, it can be perceived a predilection of the legislator on calm down the patrimony at the provisional execution of civil judgments, in detriment of the devaluation conferred by the Full Court of Supreme Court to the liberty in similar procedure situations. Lastly, it can be observed the change of interpretation used at Supreme Federal Court, at the time interval understood between the years 2009 and 2016, it just happened because of the change of composition of their members, once the situation experienced at the two opportunities are very similar.