Execução provisória da pena privativa de liberdade: contribuição para a redução da impunidade

Abstract

This monograph deals with provisory execution of the loss of liberty sentence and its compatibility with the constitutional principle of the presumption of innocence or not guilty. It presents the historical background of this accepted principle and the experience of other important countries about the possibility of provisory execution. It analyzes the meaning, the scope and the limits of the presumption of innocence, considering rules and principles of our legal system. It clarifies that the Higher Courts, when judging special and extraordinary appeals, evaluate only issues of legality and not re-examine facts and evidence, already reviewed and decided in the lower courts. It criticizes the Brazilian appeals system, which allows the abusive use of the legitimate right to appeal, with the intention of delaying progression of the process and preventing the final judgment of any conviction. It examines the fundamental principles of the effectiveness of criminal jurisdiction and reasonable processing time, and the necessary harmony and balance between them, as well as the principle of presumption of innocence. It explains the relationship of provisory execution with Security and National Development which, alongside Defense, constitute the primary areas of focus of the Escola Superior de Guerra. It discusses the jurisprudential oscillation in the Higher Courts and the labor agreement within our Supreme Court. It concludes that provisory execution of imprisonment, after conviction in the second trial, does not violate the principle of presumption of innocence, and it will help reestablish the effectiveness of the criminal procedure and reduce impunity in our country.