A (in)constitucionalidade da execução provisória da pena

Abstract

On February 17, 2016, or STF in the HC nº 126.292 / SP, modified its understanding, allowing a provisional execution of the condemnation after condemnatory judgment given by the Court of 2nd degree. Thus, the present understanding dispenses with the requirement of a final decision for the commencement of the sentence. On October 5, 2016, by a majority, the Plenary of the Federal Supreme Court (STF) understood Article 283 of the Code of Criminal Procedure (CPP) do not prevent the commencement of execution of the sentence after the conviction in the second instance and dismissed injunctions pleaded in the Declarations of Incorporation (ADCs) 43 and 44, such decision gave binding effect to the new understanding of the Plenary that passed a being adopted definitively by the other Courts. Such an understanding is incompatible with the 1988 Constitution and with the principle of presumption of innocence, or not guilt. In addition, the arguments that defend admissibility are overvalued and convenient, a point of being placed above the Constitution.