A POSSÍVEL CONSTITUCIONALIDADE DA PRISÃO APÓS CONDENAÇÃO EM SEGUNDA INSTÂNCIA

Abstract

The present work aims to analyze the possible constitutionality of the provisional execution of the sentence in the 2nd instance. Since the promulgation of the Citizen Constitution, the issue has been generating divergences, due to an alleged violation of the principle of the presumption of innocence. The possibility of imprisonment after confirmation of the condemnatory criminal sentence by the court, has already been modified three times, between allowing or not, the provisional fulfillment of the sentence, and today, the current understanding of the Supreme Court - the main objective of this work's analysis - is in the meaning that for a citizen to be placed behind bars, the exhaustion of appeals is necessary. Part of the doctrine believes that the constitutional principles cannot be relativized, being necessary its faithful observance for the sake of legal security. On the other hand, there are those who regret the new understanding, because in the Brazilian legal system not even the right to life is considered absolute. In addition, the current format further burdens the judiciary, favoring the bringing in of adventurous appeals whose purpose is only to postpone serving time, making the process even more time-consuming. In short, the great divergence of opinions and arguments is notorious, after all it is one of the most basic principles of the Brazilian legal system, Liberdade. In this sense, the constitutional principles in question, the procedural legislation, as well as the doctrinal divergences in relation to the current understanding of the Federal Supreme Court will be further analyzed