Constitucionalidade da execução imediata da pena aplicada pelo tribunal do júri à luz do STF

Abstract

This paper seeks to analyze the decision of the Federal Supreme Court (STF), which decided whether the sovereignty of the jury's decisions, as laid down in the Federal Constitution, justifies the immediate execution of the sentence imposed. Thus, those convicted by a popular jury can be imprisoned immediately after the decision. The decision was reached by a majority of votes in Extraordinary Appeal (RE) 1235340. The matter has general repercussion (Topic 1068), which means that the thesis established must be applied to all similar cases in the other instances of the Judiciary. The ruling also held that article 492 of the Code of Criminal Procedure (CPP), in the part that conditions the immediate execution only of sentences of at least 15 years in prison, is unconstitutional, as it relativizes the sovereignty of the jury. The appeal was brought before the STF by the Public Prosecutor's Office of the State of Santa Catarina (MP-SC) against a decision by the Superior Court of Justice (STJ) that considered the immediate imprisonment of a man sentenced by the jury to 26 years and eight months in prison for femicide and irregular possession of a firearm to be illegal. The majority of the court followed the position of the president of the STF, Justice Luís Roberto Barroso, that the immediate imprisonment of those convicted by a popular jury, regardless of the sentence imposed, does not violate the constitutional principle of the presumption of innocence, because the defendant's guilt has already been recognized by the jury. In the dissent opened by Justice Gilmar Mendes, the sovereignty of the decisions of the popular jury is not absolute, and, in compliance with the principle of the presumption of innocence, the sentence can only begin to be served after the final conviction, when there are no further appeals. However, he pointed out that it is possible to order preventive detention immediately after the end of the jury, if the judge deems it necessary. Justice Rosa Weber and Justice Ricardo Lewandowski, both retired, had voted in the same direction. Also partially defeated were Justices Edson Fachin and Luiz Fux, who allowed immediate imprisonment when the sentence exceeded 15 years, as provided for in the Anti-Crime Package, or in cases of femicide.