EXECUÇÃO PROVISÓRIA DA PENA E SUA ATUAL APLICAÇÃO PELO SUPREMO TRIBUNAL FEDERAL

Marca de um estado de exceção?

Abstract

The study on the state of exception has, as main exponents, Carl Schmitt and Giorgio Agamben. Both will point out that the predominant mark of a state of exception is the separation between law and “force-of-law”. Judicial activism must be understood as a bifacetary phenomenon, being that, in its negative aspect, it transforms the application of laws into an instrument of persecution of opponents and breaks with the Democratic Rule of Law, not guaranteeing everyone equality before the Law. Provisional punishment is a negative judicial activism since its acceptance violates several of the fundamental precepts that underlie the rule of law as established in the Federal Constitution of 1988, such as the presumption of innocence, due process of law and the prohibition against retrogression. Social. Thus, the decision of the Federal Supreme Court that allowed the provisional execution of the sentence shows not only the importance of thinking about a mechanism to control the actions of the Supreme Court, but also exposes it as an agent of exception, demonstrating that even democratic institutions do not depart definitively the risk of an authoritarian state.