Uma análise a respeito da constitucionalidade do cumprimento antecipado da sentença penal condenatória: um estudo acerca do recurso extraordinário nº 1.235.340/SC e do artigo 492 do código de processo penal

Abstract

The principle of presumption of innocence is a key piece for the entire legal system of any Democratic State of Law, not by mere whim, in Brazil, the mentioned principle is positive among the sections of art. 5th, of the Federal Constitution of 1988, being a permanent clause and fundamental guarantee, therefore, its text cannot be modified, and must be fully respected, while the current Magna Carta is in force. However, the Brazilian jurisprudence has a glaring history of attempts to relativize the aforementioned principle, in the search for greater efficiency in the criminal process through the early start of a criminal sentence. This hypothesis, even though it has been discarded several times by the Federal Supreme Court itself, still persists in reappearing within the Brazilian legal system and has even been dangerously discussed in a favorable manner in recent Supreme Court debates. So, it is relevant and necessary to study the motivations that lead to the occurrence of such a phenomenon, as well as its consequences, since they could change the criminal legal system as a whole. Accordingly, in this work, will be studied the art. 492, inc. I, paragraph “e”, of the CPP and the RE 1.2350.340/SC, where both are recent examples of the phenomena previously described, in the search to explain the flaws present in the theories that seek to relativize the principle of presumption of innocence and the early start of a criminal sentence, within the Court of Jury.