A inconstitucionalidade da decisão de prisão em segunda instância, frente ao artigo 5º da Constituição Federal e o artigo 283 do Código de Processo Penal

Abstract

It is said that a judicial decision has become final when there is no longer any possibility of appeal, either because all the legal deadlines for its filing have been exhausted, or because of the final judgment of the appeal claim deducted from the criminal sentence that establishes an unappealable conviction for the agent. However, this does not extend the fulfillment of the criminal sanction, previously and legally foreseen, only to after the last resorts, because since the beginning of 2016, it is understood that the possibility of starting the execution of the sentence after confirmed in the second degree does not violate the constitutional principle of the presumption of innocence. Considering the existing divergences about article 283 of the criminal procedure code and article 5 of the federal constitution, the present study is inserted in this context with the objective of bringing into discussion the unconstitutionality of the arrest decision in the second instance. Therefore, bibliographic research was developed, primarily through the analysis of doctrinal understandings on the subject. According to the above, the presumption of innocence is a principle that results in the inexistence of an obligation of self-responsibility and the right to silence, without being classified as a confession or declaration of guilt. Uncertainties and even setbacks in society can result from the lack of understanding of semantic boundaries, especially those found in constitutional texts, putting at risk the historically conquered guarantees that make up the Rule of Law. As a result, the presumption of innocence must be considered as a civic guarantee, as it constitutes one of the pillars of the legal prosecution process, which protects dignity and fundamental human rights. Finally, it is emphasized that the guiding principle of the presumption of innocence must be respected by all state authorities in order to be effective.