As reiteradas mudanças jurisprudenciais do Supremo Tribunal Federal sobre a execução provisória da pena

Abstract

This article aims to analyze the judgments Habeas Corpus 68726/DF, 84078/MG, 126292/SP and Declaratory Actions of Constitutionality’s 43, 44 and 54, all judged by the Supreme Court. The intention is to understand the basis of the changes in understanding about the provisional (anticipated) execution of the penalty since the 1988 Federal Constitution, which are related to the way in which article 5, LVII of the is Magna Carta interpreted in Brazilian law. The aforementioned constitutional provision can be interpreted in two ways, such as literal interpretation (transition res judicata of a condemnatory criminal sentence) and relative interpretation (exhaustion of the factual-evidence analysis). These interpretations determine the application or not of the early execution of the penalty because some ministers make the literal interpretation of this provision to prohibit the use of the provisional execution of the penalty and others make the relative interpretation in order to admit the early execution of the penalty.