The unconstitutionality of article 492, item 'E', i of the Code of Criminal Procedure

the Federal Supreme Court again between the political and the legal

Abstract

With the entry into force of Law 13,964/2019, article 492, item I, line 'e' of the Code of Criminal Procedure introduced the possibility of immediate execution of the sentence after conviction by the Jury Court, whose penalty is equal to or greater than 15 (fifteen) years of confinement. With such inclusion, the doctrinaire and jurisprudential debate has been rekindled about the possibility or not of the provisional execution of the sentence before res judicata, a theme that has already been the subject of conflicting decisions by the Federal Supreme Court itself in the years 2016, 2018 and 2019, returning in 2021 on the unconstitutionality of that provision inserted by the new law. Thus, the work is proposed in the analysis of the possibility and limits of action of the Judiciary in detriment to the other powers, as well as the verification of the constitutional principles affecting the (im) possibility of arrest. After, dealing with sensitive issue, whose case law of the STF is oscillating, it is necessary to analyze, even perfunctory, the decisions rendered in 2016, 2018 and 2019, to then perform the analysis of the insertion of the provisional execution of the sentence after conviction by the Jury Court in Article 492, item I, line 'e' of the Code of Criminal Procedure and the critical construction that the work proposes: the impossibility of provisional execution of the sentence before res judicata.