A presunção de inocência ante a execução provisória da pena após exaurido o duplo grau de jurisdição: um estudo a partir de decisões específicas do STF

Abstract

The current conjuncture brought by the Democratic State of Law highlights, increasingly, the need of protection of the guarantees that secure fundamental rights of the individual over the interventionist state force. In this context, it is inserted the paradigm change by the Federal Supreme Court, brought by Habeas Corpus 126.292, wich determined the possibility of provisional execution of the conviction sentence after exhausting the double degree of jurisdiction, constituting a clash with the principle of the presumption of innocence, assured in the article 5°, LVII, of the Federal Constitution. Thus, the presente work will seek to appreciate the constitucional guarantees that support the criminal procedural system against this new position of the Federal Supreme Court, contextualizing the principle of presumption of innocence and delimiting its unfoldings. In addition, brief considerations will be made about the access to the extraordinary degree, since it constitutes a central point of the problem presented. Nevertheless, decisions of the Supreme Court will be analyzed, considered historical in relation to the subject under consideration, and what their influence in the other courts, by making a critique of the new precedent of the Supreme Court, considering the consequences and repercutions that may arise from it. In order to do so, a dialetical approach will be performed, using monographic and comparative methods, in order to explore critically cases that support the raised question. Indeed, the mitigation of a constitucional guarantee constitutes a dangerous precedent for other guarantees to be relativized, and, in this way, the study of this work will be directed to a proposal of a more guarantor vision, with the implementation of a less reductionist interpretation of legal securities.