A execução provisória da pena à luz do princípio da presunção de inocência: uma análise da jurisprudência do Supremo Tribunal Federal em confronto com as espécies de prisões permitidas pela constituição

Abstract

In this article we intend to make a reading of the constitutional text that has the principle of presumption of innocence and how we must understand it. We seek, based on this principle, to face the current decisions of the Supreme Court that has allowed the provisional execution of the punishment based on a decision has taken by a second instance. We value as the theoretical framework or the penal guaranty of Luigi Ferrajoli and use as methodology the bibliographic review of books on constitutional law, criminal law and criminal procedure. As a result of our research, we understand that the correct reading of the constitutional text prevents the provisional execution of the sentence, since such an institute is incompatible with the excerpt from the National Constitution, which states that no one will be found guilty prior to the occurrence of transit in judged of his condemnation. We conclude that the change occurred in the current understanding of the Supreme Court tends to have deleterious effects on the already well-known brazilian prison system, and ends up placing the argument of social defense above the individual rights and guarantees. We take that the reading of these only allows the deprivation of freedom, in a moment before the final decision, when substantiated on the basis of necessity. Absent the necessity for a precautionary prison, remand his prison before the conviction with his final sentence.