Processo penal, política criminal e Constituição: análise das orientações do STF acerca do cumprimento antecipado de pena

Abstract

The Brazilian Supreme Court has been unstable about the possibility of anticipating the penal execution, imprisoning the defendant before the claim preclusion. For two decades, the Court said this was constitutional, but in 2009, this rule was rejected. In 2016, the Court accepted the anticipated imprisonment again, and in 2017 there are signals of a new reversal. To end this instability, it is necessary to make it clear which of the interpretations about the presumption of innocence is more harmonical with the Constitution of Brazil, because the constant changings leads to legal uncertainty, and affects one of the most important rights of human being: its freedom of locomotion. Searching for the most correct answer, we analyzed the decisions of Brazilian Supreme Court from 1988 to 2009, and on habeas corpi 84.078 and 126.292, aiming to identify its main motives. Then, we analyzed the repercussions of the decision taken in 2016, its application, and the criticism that surrounds it. Eventually, we concluded that the anticipation of the penal execution is not consistent with the presumption of innocence the way it was treated on the Brazilian Constitution, and that the Brazilian Constitutional Court unduly overruled the Brazilian National Congress to reformulate the punitive justice system, aiming to please the people and the media.