Execução provisória da pena versus presunção de inocência

Abstract

The present work has the purpose of analyzing the Supreme Federal Court’s judgment on the Habeas Corpus (HC) 126.292 / SP. The analysis was produced in an independent way, using as parameters the pact of San José and the Federal Constitution of the Republic of Brazil of 1988, regarding human rights and the principle of presumption of innocence, in comparison to the Provisional execution of the sentence. It is worth mentioning that the aforementioned HC case changed the understanding regarding the possibility of executing the sentence, allowing it to occur from the condemnatory judgment of the second instance, as well as changed the understanding hitherto signed with HC 84.018 / MG, which provided that the beginning of the execution of the sentence would occur after the final sentence of the conviction has passed, after the appeals have been judged by the higher courts. The paper was divided into three parts. In the first one, the concept of presumption of innocence was developed within the Pact of San José and the Brazilian Constitution, mainly in relation to the points in which they interfere in the concept of res judicata and in the possibilities of execution of the sentence. In the second, the description of the judgment analyzed was made, by means of the exposition of the points sustained by the Ministers who subsidized the denial of the order. The third part sought to analyze the points that served as a basis to support the judgment, given the conceptual parameters regarding the presumption of innocence, based on the texts of the 1988 Constitution and the Pact of San José.