A (in)constitucionalidade da prisão em segunda instância a partir das recentes decisões do Supremo Tribunal Federal numa perspectiva garantista

Abstract

This research sought to analyze the second instance prison under a guaranteeing perspective, highlighting the principle of presumption of innocence in the Brazilian legal context and art. 5 of the Federal Constitution of 1988. In this sense, the discussion of the indispensable rigidity regarding changes in the normative text and legal application of the Federal Constitution was addressed and, consequently, the different forms of interpretation that the Judiciary Power has been giving to the application of the rule Preview. The method of approach used in this study was the deductive one, as it starts from theories already exposed, and its general objective was to analyze the extent to which the Supreme Court's interpretation of the possibility of imprisonment in second instance affronts the principle of non-culpability or presumption of innocence, provided for in article 5, LVII of CF/88, and as specific objectives to analyze the post-positivist theory and its application by the Brazilian judicial system, highlighting the constitutional principle of non-blame and its protection bias towards the individual's freedom; identify in the legal system, the general and fundamental principles, which guided the recent decisions of the Supreme Court on second instance imprisonment; distinguish between the theoretical assumptions of unconstitutionality and constitutionality of second instance prison, from a guaranteeist perspective. The Federal Constitution of Brazil of 1988 establishes in its text in article 5, LVII that: “no one will be considered guilty until the final and unappealable sentence of a criminal sentence”. It can be concluded, therefore, that, observing the latest decisions of the Superior Federal Court, considering that the Federal Constitution is the ultimate law, the need to review the STF's decisions on the subject is certain, especially by analyzing the bias of protection of the basic principles of the individual.