PRINCIPLE OF NON-GUILT AND THE (UN)CONSTITUTIONALITY OF PROVISIONAL EXECUTION OF THE SENTENCE

Abstract

The scope of this work is to make a brief analysis of the continuous clash between the legal institutes of the principle of presumption of innocence and provisional execution of the sentence. Initially, the concept of the principle of non-culpability and its importance as a constitutional guarantee will be seen. Through a descriptive research, with some exploratory aspects, the article aims to expose the doctrinal arguments regarding the (un)constitutionality of imprisonment after conviction in the second instance; to make brief comments on the four jurisprudential turns on the subject, which culminated in the consolidation of the understanding signed by the Plenary of the Federal Supreme Court, in ADCs 43, 44 and 54. Finally, a brief reflection will be made on the possible legal impacts, in case of approval of the Constitutional Amendment Proposal on the subject, specifically mentioning the PEC 410/2018 and the PEC 199/99, to demonstrate how possible proposals to amend constitutional provisions can generate repercussions of great impact, with regard to the principle of presumption of innocence.