A INCONSTITUCIONALIDADE DA EXECUÇÃO PROVISÓRIA DA PENA, APÓS DECISÃO POR ÓRGÃO COLEGIADO DE 2ª INSTÂNCIA SEM O TRÂNSITO EM JULGADO DA SENTENÇA PENAL CONDENATÓRIA

Abstract

This work demonstrates the unconstitutionality of the provisional execution of the sentence, after the decision of the court of second instance. Such an approach is justified and necessary, in view of the unconstitutionality of the decision taken by the Supreme Court to allow such arrest. The purpose of this paper is to demonstrate the violation of the stone clause provided for in the list of individual rights and guarantees. This task will be achieved through direct research on the decisions of the Supreme Court, as well as constitutional and legal analysis of the theme, with discussions of legal nature and relevant to the theme. The study showed that when analyzing the theme the STF was simply guided by social issues answering the social outcry leaving aside the legal basis that should be followed. All of this with the justification of punishing those accused of white collar crimes, forgetting that the right to defense is for everyone, including that the concrete case analyzed was that of a citizen who was never of the elite. In order to correct such misconception, the Supreme should resume understanding about the unconstitutionality of the subject, in addition to considering the exhaustive list of arrest provided for in Article 283 of the Criminal Procedure Code, declaring it constitutional and allowing only those prisons. Understand, also, that the res judicata happens only after the impossibility of appeals or before the manifest will or omission of the one who can propose it.