Prisão após decisão em segunda instância: a constitucionalidade do cumprimento de sentença anterior ao trânsito em julgado

Abstract

This present work discuss the possibility of provisional execution of the condemnatory penal sentence, when special or extraordinary recourses are still pending, concerning the principle of the innocence presumption, assured by the Federal Constitution, when stating in its article 5º, LVII, that “no one is found guilty until the final condemnatory penal sentence”. Regarding this fact, many considerations will be made about the constitutional principles in the criminal proceedings, mainly referring to the innocence presumption, due to a Constitution that usually guarantees the human rights. In addition, it will be made a critical and conceptual discussion about the procedures of precautionary prisons, besides the requirements for its accomplishment. It is also reasonable to demonstrate which are the special or extraordinary recourses effects, as for its reception towards STJ and STF respectively, if only devolutive or if it is admitted the suspensive effect, too. Then, it will be analyzed the jurisprudence evolution in a national and international context about the subject matter. In order to analyze these aspects, a bibliographical and jurisprudential research was carried out.