(In) constitucionalidade da execução antecipada da pena: análise à luz do princípio da presunção de inocência e do estado de coisas inconstitucional atinente ao sistema carcerário

Abstract

The purpose of this paper is to analyze the constitutionality of the early execution of the penalty, admitted by the Federal Supreme Court in the judgment of habeas corpus nº. 126,292 / SP. To achieve this objective, it was initially presented a study on the fundamental rights and guarantees related to this subject, such as the due process of law, contradictory, ample defense and, especially, a presumption of innocence or non-fault. Then, given the importance of verifying the impact that this provisional execution can generate for society, especially for the prison population, a study was carried out about the institute of the Unconstitutional State of Affairs and its application by the Supreme Court to the brazilian prison system in the face of the finding of a general violation of fundamental rights in these prison structures. Finally, a specific analysis was carried out of the decision that recognized the possibility of early execution of the penalty, aiming, based on everything that was presented, to verify whether it’s compatible or not with the legal system and with the social reality faced in this prison system.