A EXECUÇÃO ANTECIPADA DA PENA: Análise acerca da constitucionalidade da prisão após condenação em segunda instância

Abstract

The present work is to carry out an analysis of the constitutionality of the execution of the sentence after conviction in the second instance, verifying the possibility of a different meaning in the constitutional text that conditions it to a final decision. Thus, considering that, despite the practical consequences, the object of study is mainly theoretical, research will be supported in the bibliographic material with the use of the deductive and inductive method. Furthermore, as it derives from different hypotheses, but using a similar mechanism, this possibility proves to be perfectly appropriate, not only because of the hermeneutics that has already been used to legitimize an early execution of the sentence in the past, but also due to other decisions that go in the same direction. That is, contrary to the legal text expressed with the intention of safeguarding the constitutional values enshrined as a whole and not a principle in isolation. Thus, despite the provisions of the text of the Constitution in its art. 5, LVII, literally, it is feasible for the exegete to operate an interpretation using the general theory of fundamental rights or the established informal amendment of the constitutional text, recognized as a constitutional mutation, Examiner safeguard the system and maintain the effectiveness of values. Therefore, an early execution of the penalty can be recognized as constitutional in light of its confrontation with other principles equally defended by the Magna Carta, such as, for example, the principle of effectiveness and procedural celerity.