Execução provisória da pena e a presunção de inocência : oscilação do entendimento da matéria no Supremo Tribunal Federal a partir da Constituição de 1988

Abstract

This paper aims to analyze the provisional execution of the sentence and the presumption of innocence in the Federal Supreme Court since the promulgation of the 1988 Constitution. The problem of the present research arises from the following question: Given the oscillation in the understanding of the matter by the Supreme Federal Court since 1988, is it compatible with the constitutional guarantee of presumption of innocence (art. 5, LVII, CF) the decision that allows the imprisonment of an accused after a conviction, for purposes of serving a sentence, even without a final and unappealable decision? This monograph is based on a bibliographical research technique, using the hypothetical-deductive approach. To this end, the present text is structured in three major parts: In a first moment, it made considerations regarding the historical, dimensional and normative aspects of the presumption of innocence and the presence of the guarantee in International Treaties on Human Rights and the Federal Constitution; then, it was discussed about the provisional execution of the sentence, its definition, its legal nature and its incompatibility in the face of the presumption of innocence; and, finally, it is performed the approach of the jurisprudential oscillation of the provisional execution of the sentence in the Federal Supreme Court from 1988, through the analysis of the Habeas Corpus 84. 087 of 2009, HC 126.292 of 2016 and Direct Actions of Constitutionality 43, 44 and 54. It was evidenced, in this work, that the presumption of innocence is a guarantee established in International Treaties on Human Rights and in the Federal Constitution that, due to the latter, conditions guilt to the transit in res judicata of a criminal sentence. It is inferred from this that imprisonment resulting from a confirmatory or condemnatory judgment by the local court is incompatible with the presumption of innocence.