Anticrime package : the provisional execution of the sentence in the Jury Court and the violation of the principle of the presumption of innocence

a execução provisória da pena no Tribunal do Júri e a violação ao princípio da presunção de inocência

Abstract

The present work consists of a critical, doctrinal and jurisprudential of the unconstitutionality of article 492, I of the Code of Criminal Procedure, in view of the changes brought by Law 13.964/2019 enshrined as the Anti-Crime Package. In this vein, historical factors that interfered in the configuration of the current punitive system will be analyzed, as well as, pointed out the possible penal contours that corroborated the reverberation of excessively punitive policies that insistently relativize constitutional guarantees. Furthermore, it will be demonstrated that the presumption of innocence was not observed in the amendment brought by the law under examination, generating a legal exception to the rule of execution subsequent to the formation of res judicata. It is observed that the national jurisprudence, although they have fluctuated in the last decade, also currently confirm the unconstitutionality of the sentence prior to the final and unappealable decision. Once the bibliographical and descriptive methodological analysis has been carried out through the legal provisions that permeate the issue, the flagrant incongruity of the execution under study before an accusatory penal system remains evident, concluding by the sensitive need to declare it contrary to the guarantee of the Magna Carta, removing, via consequently, its application in the Brazilian judicial system