PRISON AFTER SECOND INSTANCE CONVICTION

Abstract

In summary, this article seeks to bring to debate why the Brazilian supreme court sometimes believes that a conviction confirmed by a second-degree panel is an affront to the principle of presumption of innocence, sometimes not. On several occasions, scholars, jurists, magistrates and even ministers of the Federal Supreme Court, the highest Brazilian court, have understood that it is perfectly in line with legislation and jurisprudence for the defendant to immediately serve the sentence immediately after the conviction upheld by the Court of Justice. This understanding does not affect the principle of presumption of innocence, but only mitigates it since the accused can still appeal to the higher courts, including the STF, however it is necessary for the supreme court to stick to its constitutional role, which is not to re-analyze evidence as this has already been done by the ordinary courts, but rather to analyze whether there was any defect in due legal process that violates the Federal Constitution of 1988. A different understanding from that which authorizes the defendant, even with all signs of authorship and materiality, to be able to appeal freely ultimately, in addition to being synonymous with impunity, it violates fundamental precepts and principles such as legal security, equality and procedural speed. Concomitant to this is the feeling of injustice present in society, considering that the state is the only one that has the right to punish and does not do so, as it is not uncommon for resources to be used to make justice slower than usual. This already leads to the prescription of punitive claims.