Provisional execution of sentence authorized by the Supreme Federal Court

expansion of the state of emergency in Brazil

Abstract

This study aims to analyze the decisions by the STF (Supreme Federal Court) in Habeas Corpus No. 126.292 SP and Declaratory Actions of Constitutionality No. 43 and 44, which provoked intense legal debate, in light of the theory of the state of exception. These decisions allowed the provisional execution of a sentence after a second-degree conviction by the Judiciary, even while an appeal to a higher court was pending, without the need to investigate possible pre-trial detention, already provided for in the legal system. It is questioned whether this decision does not expressly violate the presumption of innocence provided for in Article 5, item LVII of the 1988 Federal Constitution. It seeks to verify whether the decision is related to the political and economic context that the country experienced after the June 2013 protests. Then, a legal and doctrinal approach to the ministers' decisions on the aforementioned decisions is made. This analysis examines the thoughts of Carl Schmitt, Walter Benjamin, and Giorgio Agamben on the state of exception.

An approach is taken, drawing a parallel between the main ideas of these thinkers and the issue of automatic imprisonment after a second-degree conviction. The research was conducted through a bibliographic study. This is a controversial decision that changed the understanding established by the Supreme Federal Court itself in 2009.