A execução provisória da pena no âmbito do tribunal do júri ante o princípio da presunção de inocência

Abstract

The principle of the presumption of innocence, ered to the status of constitutional norm after prediction in art. 5º, LVII, of the Federal Constitution of 1988, rekindled discussions as to its form of application. The Federal Supreme Court ruled that the execution of the sentence, although pending remedies, did not violate the principle, authorizing the application of articles of the Code of Criminal Procedure. After changes of understanding of the Court, the current understanding is similar, being authorized the execution of the sentence after confirmation of conviction in the second degree. The First Chamber of the Supreme Court, in Habeas Corpus 118.770/SP, decided that the restriction of the freedom of the defendant convicted by decision of the Court of Jury does not violate the principle of presumption of innocence, although pending remedies, as the appeal. In this way, the objective of the work was to make a brief conceptualization of the principle in focus, to study the decision of the Supreme Court regarding the provisional execution of the sentence in the context of common crimes, in particular the Habeas Corpus nº 126.292/SP, in order to analyze whether Habeas Corpus decision nº 67.857/SP, in weighing the State's pacifying function and presumption of innocence, occurred adequately in the face of proportionality and its sub-principles. The study was developed through bibliographical research, performed by means of books, monographies, doctorate and LLM thesis, articles, legislation, judicial decisions and public websites. The results obtained were in the sense of violation of proportionality in the strict sense, in the balance between the principles, configuring a violation disproportionate to the presumption of innocence, in this way, incompatible with the Federal Constitution of 1988.