Prison In Second Instance: A Persisting Legal Insecurity

Abstract

The present work aims to discuss the immediate execution of the penalty in the second instance, analyzing the judgment of Direct Actions of Constitutionality 43, 44 and 54. Through the judgment, the defendant can only serve the sentence when all contesting means are exhausted, modifying, once again, the previous understanding, from 2016, which provided for the possibility of executing the penalty after conviction in the second instance. The Federal Constitution establishes as a permanent clause the principle of presumption of innocence in its article 5, item LVII, in which imprisonment is only possible after the final and unappealable decision of the criminal sentence. Through bibliographical research and the inductive method, the study of the subject will be analyzed, allied to a legal uncertainty that the not rare changes of understanding by the STF bring to the legal system. The analysis begins with the current criminal procedural system, continuing with the principle of presumption of innocence. The article also discusses the immediate execution of the penalty in the Jury Court, under the new Law No. 13.964/2019. Finally, we seek to analyze the judgment of ADC's 43, 44 and 54, which changed, finally, the understanding of the STF, judging article 283 of the Code of Criminal Procedure as constitutional.