Presunção de inocência e clamor social: constituição federal e convenção americana no caso da boate kiss

Abstract

This article aims to analyze whether the provisional execution of the sentence in crimes within the competence of the Jury Court, as provided for in art. 492, I, e, of the Criminal Procedure Code represents a violation of the guarantee of the presumption of innocence. The guarantee of the state of innocence establishes the final and unappealable conviction of a condemnatory criminal sentence as a landmark. The American Convention on Human Rights also establishes the presumption of innocence as a judicial guarantee of the accused against the punitive power of the State, not admitting the beginning of the execution of the sentence before the final judgment. However, Brazilian Law no 13.964/2019 gave new wording to art. 492, I, e, of the Brazilian CPP, to admit that in crimes prosecuted by the Jury, whose sentence applied exceeds 15 (fifteen) years, the execution of the sentence is immediately initiated. In order to analyze the performance of the Judiciary in the interpretation and application of these provisions, the case arising from the fire at the Kiss Nightclub, in which the defendants were sentenced with immediate execution of the sentence, is used as a concrete case of reference. The presumption of innocence is adopted as a critical parameter as the accused's right of resistance against the punitive state power, as defended by Fernando Capez, Aury Lopes Jr. and Eugênio Pacceli. The research uses a bibliographical analysis of doctrinal, documentary, legal-positive and jurisprudential sources, especially the decisions handed down by the Inter-American Court of Human Rights and by the Federal Supreme Court about the presumption of innocence and the prohibition of the provisional execution of the sentence. It concludes that the legal provision is unconstitutional, in view of the opposition of the legal provision to the hierarchically superior norms that make up the Brazilian legal system and the regional international law, including the application of its logic to the cases of the Jury Court, as occurred in the the case of Boate Kiss.